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Court of AppealAllowedCivil Application No. E012 of 2023· [2023] KECA 891 (KLR)

Kenya Cultural Centre v Dr. Edwin Gichangi

Court of Appeal
24 July 2023
HOH. A. OmondiALAli-AroniJMJ. Mativo
2,963 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal paused the employment case against Kenya Cultural Centre until it decides whether key evidence was wrongly excluded.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on the applicant's notice of motion dated January 17, 2023, brought under sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 41 of the Court of Appeal Rules, seeking a stay of proceedings in Nairobi ELRC Case No. 998 of 2018 (Dr Edwin Gichangi v Kenya Cultural Centre) pending the hearing of the applicant's appeal, Civil Appeal No. E012 of 2023. The underlying litigation arose from the respondent's suspension as Chief Executive Officer in 2018 and a series of interim reinstatement and dues orders in the ELRC. The ruling under appeal, delivered by Ndolo, J. on November 10, 2022, dismissed the applicant's application to adduce an Inspectorate of State Corporations investigation report in support of its counter-claim, on the basis that the issue of the respondent's dues had already been determined. The applicant contended, among other grounds, that the ruling violated its right to be heard under Article 50(2)(i) of the Constitution and misapplied res judicata. Applying the settled two-pronged test under rule 5(2)(b) - an arguable appeal and nugatory value if stay is refused - the court found the appeal arguable, noting that the trial court had characterised the application as res judicata notwithstanding a direction by Makau, J. that the matter proceed to hearing, and held that if the ELRC trial concluded without the report and the appeal succeeded, the appeal would be a mere academic exercise. The application was allowed, proceedings in the ELRC were stayed pending the appeal, and costs of the application were made to abide the outcome of the appeal. The decision binds subordinate tribunals and the ELRC only in the sense of preserving the status quo; it is an interlocutory, discretionary ruling.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was arguable because the trial court held the applicant's application to adduce the Inspectorate of State Corporations investigation report res judicata despite a direction that the matter proceed to hearing for determination of quantum.

Reasoning

The court, mindful of its limited mandate on a rule 5(2)(b) application, evaluated whether at least a single bona fide arguable ground existed. It found it arguable that the learned judge wrongly treated the application to adduce additional evidence as res judicata when the issue of the employee's dues was pending determination, and that prejudice from locking out the evidence warranted interrogation at the hearing of the main appeal.

p. 5
02

Whether the appeal would be rendered nugatory if the ELRC proceedings proceeded

Holding

The appeal would be rendered nugatory because, should the ELRC case proceed to completion and the appeal succeed, the matter would have been determined without the evidence the applicant sought to introduce.

Reasoning

The court applied the definition of 'nugatory' as meaning not only worthless, futile or invalid but also trifling. If the substantive trial concluded without the investigation report being admitted and the appeal later succeeded, the appeal would be a mere academic exercise, satisfying the second prerequisite for a stay under rule 5(2)(b).

p. 6

Legal principles established

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  • An application under rule 5(2)(b) requires the applicant to demonstrate both an arguable appeal and that the appeal will be rendered nugatory unless the stay is granted; the jurisdiction is discretionary and must be exercised judicially.
  • In determining arguability under rule 5(2)(b), the court must not make definitive findings of fact or law.
  • An arguable appeal need not be one that must succeed; it suffices that it is not frivolous and merits full argument.
  • A stay of proceedings is a drastic step to be granted only in exceptional and well-deserving cases.

Court orders

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  1. 1.Stay of any other or further proceedings in Nairobi Employment and Labour Relations Court Case No. 998 of 2018, Dr. Edwin Gichangi v Kenya Cultural Centre pending the hearing and final determination of Civil Appeal No. E012 of 2023
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Case No. 998 of 2018 (Dr Edwin Gichangi v Kenya Cultural Centre)
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 41 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Cultural Centre v Dr. Edwin Gichangi", Case Analysis (2023). Civil Application No. E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/891/eng@2023-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.