Technical University of Kenya v Owour (Civil Application E269 of 2020) [2023] KECA 103 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Kshs.5 million employment damages award against Technical University of Kenya until its appeal is heard and decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal
- 2.Whether the appeal would be rendered nugatory if stay of execution and injunction are not granted
Key legal issues
#Test for stay of execution or injunction under Rule 5(2)(b)
The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted; both requirements were met on the facts.
The Court restated the settled twin test under Rule 5(2)(b): arguability and nugatory-ness. It found the grounds raised - absence of a contractual relationship, alleged lack of evidence of discrimination, and no absorption arrangement with TSC - were arguable and not frivolous. It was further satisfied that execution of the Kshs.5,000,000 damages award pending appeal would render the appeal nugatory, and so granted the stay and injunction to the hearing and determination of the appeal.
Legal principles established
#- An arguable appeal is one that raises at least one bona fide point worthy of response and decision, and the applicant must also show the appeal would be rendered nugatory without stay or injunction
Court orders
#- 1.Grant of the injunction and stay of proceedings sought in the motion, extending to the hearing and determination of the appeal
- 2.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- null
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; a filed notice of appeal gives the Court jurisdiction to hear the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An arguable appeal is simply one that raises at least one bona fide point that calls for a response from the respondent and is worthy of decision by the Court hearing the appeal.
We therefore grant the injunction and stay of proceedings sought in the motion, which shall extend to the hearing and determination of the appeal.
The costs of the motion shall be in the appeal.
Issues in the judgment
#The judgment describes the motion as seeking stay of execution, yet the operative order grants 'stay of proceedings', an apparent inconsistency in the relief ordered
The narrative inconsistently refers to the respondent as retired from TSC in 2009 while later referring to the respondent's 'future at the institution' as the appellant's future, conflating party references
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Technical University of Kenya v Owour (Civil Application E269 of 2020) [2023] KECA 103 (KLR)", Case Analysis (2023). Civil Application No. Nai. E124 of 2020 (Motion dated August 25, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/103/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.