Kenya Institute of Management v John Mwaniki & 8 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the impugned ruling was a negative order incapable of being stayed
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.
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.
Whether the intended appeal was arguable and would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.