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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment (notice of motion dated 8th March 2023, Court of Appeal, Nakuru)· [2023] KECA 1230 (KLR)

Kenya Institute of Management v John Mwaniki & 8 others

Court of Appeal
6 October 2023
2,881 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused an employment case so Kenya Institute of Management's appeal can be heard before a Sh5 million costs bill is taxed.

What this practically means

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Executive summary

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The applicant, Kenya Institute of Management, moved the Court of Appeal at Nakuru under rule 5(2)(b) of the Court of Appeal Rules and sections 3 and 3A of the Appellate Jurisdiction Act seeking a stay of proceedings in Nakuru ELRC Case No. 14 of 2019. The trial court had, on 31st January 2023, dismissed the applicant's preliminary objection and notice of motion seeking to reopen the case and adduce evidence, following a judgment entered in favour of the respondents. The respondents, who had filed a party-and-party bill of costs for taxation, opposed the application, arguing that it was premised on repealed rules, that the impugned orders were negative orders not capable of being stayed, and that the appeal was not arguable. Applying the twin principles under rule 5(2)(b) - arguability and the nugatory-aim test - the Court found the intended appeal arguable on four grounds, including a challenge to the trial court's jurisdiction. Though the Court accepted that the impugned ruling was in the nature of a negative order incapable of execution, it held that the dismissal had repercussions for the applicant, enabling the respondents to execute the judgment, and that the Court's inherent jurisdiction allowed it to preserve the status quo in the interest of justice. Since taxation of Kshs. 5,020,348 would proceed on the very findings under appeal, continuing it would render the intended appeal academic. The Court allowed the application, stayed the proceedings in the ELRC cause as of the date of the ruling, and ordered that costs of the application abide the outcome of the intended appeal.

Key legal issues

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01

Whether the impugned ruling was a negative order incapable of being stayed

Holding

Although the dismissal of the preliminary objection and application was a negative order, it had repercussions for the applicant and the Court could still intervene in the interest of justice by preserving the status quo.

Reasoning

The Court accepted that the ruling dismissing the preliminary objection and notice of motion ordered no party to do or refrain from doing anything, making it a negative order incapable of execution. However, it held that the dismissal gave the respondents leeway to execute the judgment, so the Court would consider the facts to deliver justice rather than mechanically refuse stay.

p. 4
02

Whether the intended appeal was arguable and would be rendered nugatory

Holding

The intended appeal was arguable and, if taxation proceeded on the disputed figure, the appeal would be rendered an academic exercise; stay of proceedings was therefore merited.

Reasoning

The applicant reproduced four grounds of appeal including challenge to the trial court's jurisdiction and contradictory findings, which sufficed to show arguability. Since taxation of Kshs. 5,020,348 was premised on the judgment under appeal, allowing it would render the appeal academic; if the appeal failed, respondents could still proceed with taxation.

p. 5

Legal principles established

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  • A dismissal of a suit or application, being a negative order incapable of execution, cannot ordinarily be stayed; however, the Court may, in the interest of justice and under its inherent jurisdiction, make conservatory orders such as maintaining the status quo even where only a negative order is under appeal.
  • The power to stay proceedings is a serious and radical discretionary power to be exercised only in rare and exceptional circumstances in the interest of justice.
  • Under rule 5(2)(b), an applicant must establish an arguable appeal and that the appeal will be rendered nugatory unless stay is granted; a solitary arguable ground suffices.

Court orders

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  1. 1.An order of stay of proceedings (as of the date of the ruling) in Nakuru E&LRC Cause No. 14 of 2019 is issued
  2. 2.Costs of the application to abide the outcome of the intended appeal
On appeal from
Employment and Labour Relations Court
Nakuru ELRC Case No. 14 of 2019
Jurisdiction invoked
Rules 5(2)(b), 41 and 42 of the Court of Appeal Rules; sections 3 and 3A of the Appellate Jurisdiction Act

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 Institute of Management v John Mwaniki & 8 others", Case Analysis (2023). Not stated in the judgment (notice of motion dated 8th March 2023, Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1230/eng@2023-10-06

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