Kenya National Union of Nurses v Biiy (Civil Application E052 of 2022) [2023] KECA 216 (KLR)
The bottom line
#The Court of Appeal refused to pause a judgment against the nurses' union because money parked in a joint account hurts no one, so the appeal can proceed safely.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, since one of the applicant's grounds - that the trial court determined issues that were not pleaded - is bona fide arguable
The Court applied the settled standard that an arguable appeal need not necessarily succeed; it is sufficient that a single bona fide arguable ground is raised. Reading the draft memorandum of appeal, the Court identified the plea that the trial court determined unpleaded issues as an arguable element, while deliberately avoiding deeper engagement to not embarrass the appeal panel.
Whether the appeal will be rendered nugatory if stay is not granted
The appeal will not be rendered nugatory because compliance with the conditional deposit order causes no irreparable loss to the applicant
The Court reasoned that a deposit into a joint interest-earning account is reversible in effect: the money remains inaccessible to the respondent until the appeal is determined. Damages or refund remain possible, so the applicant suffers no irreparable loss. The authority relied on by the applicant (Nzyuko) was distinguished because there the judgment debtor's ability to refund was in doubt, which is not the position here.
Whether the respondent's alleged indebtedness under a decree in a separate suit can stand as security
No. The alleged debt was not canvassed before the trial court and the two matters are unrelated
The Court declined to delve into the alleged decree in ELRC No. 50 of 2018, noting those facts were not pleaded or litigated in the Kericho matter underlying this application. Even if the debt exists, the applicant may recover it through other legal means, and it cannot substitute for security in this application.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory absent a stay
- Compliance with an order to deposit a decretal sum in a joint interest-earning account does not render an appeal nugatory because the funds are inaccessible to either party without the other's consent
Court orders
#- 1.The notice of motion dated August 23, 2022 is dismissed
- 2.Costs of the application to abide the final determination of the intended appeal
- On appeal from
- Employment & Labour Relations Court at Kericho
- ELRC No. 13 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, together with sections 3, 3A & 3B of the Appellate Jurisdiction Act and section 66 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Biiy (Civil Application E052 of 2022) [2023] KECA 216 (KLR)", Case Analysis (2023). Civil Application No. E094 of 2022 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/216/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.