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Court of AppealAllowedCivil Application (rule 5(2)(b)) arising from ELRC Case No. E572 of 2021· [2024] KECA 139 (KLR)

Article 19; Global Campaign for Free Expression v Waswa (Civil Application E073 of 2022) [2024] KECA 139 (KLR)

Court of Appeal of Kenya
16 February 2024
DMD. K. MusingaWKW. KaranjaASAsike-Makhandia
1,583 words in judgment
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The bottom line

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Kenya's Court of Appeal paused enforcement of a Kshs. 3.9 million unfair termination award, saying charities shouldn't lose donated funds they may never recover.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Musinga, P, Karanja and Asike-Makhandia, JJA) delivered on February 16, 2024, on a notice of motion under rule 5(2)(b) of the Court's Rules. The applicant, Article 19 Eastern Africa, sought stay of execution of a judgment of the Employment and Labour Relations Court at Nairobi (M. Onyango, J.) dated February 23, 2022, which found the respondent's termination unfair for want of valid reason and fair procedure and awarded Kshs. 3,941,777.51 (one month's pay in lieu of notice plus ten months' salary compensation). The applicant argued the intended appeal was arguable on the grounds that a fixed-term contract had lapsed by effluxion of time and that the trial court had inconsistently found a month-to-month contract yet awarded maximum compensation. On nugatory aspect, the applicant contended the decree would consume donated charitable funds and that the respondent could not refund it. The court held the twin limbs were satisfied: the issues were arguable and not frivolous, and, applying International Laboratory for Research on Animal Diseases v Kinyua, the respondent had adduced no evidence of financial means to rebut the impecunity allegation. The court granted stay of execution pending the intended appeal, with costs of the application to abide its outcome. This decision binds subordinate courts and tribunals on the rule 5(2)(b) twin-limb test.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds that a fixed-term contract lapses by effluxion of time and that ten months' compensation was awarded despite a month-to-month finding are arguable, satisfying the first limb.

Reasoning

The applicant argued the trial court erred in finding unfair termination when the fixed-term contract had lapsed, and in awarding maximum compensation of ten months' salary after finding a month-to-month contract. The court found these issues not idle and requiring interrogation on appeal, so the intended appeal was not frivolous and the arguability limb was met.

p. 3
02

Nugatory aspect and respondent's ability to refund

Holding

The use of donated charitable funds to satisfy the decree, coupled with the respondent's unsupported claim of ability to refund, established the nugatory limb.

Reasoning

The court applied the principle that impecunity allegations shift the evidential burden to the respondent. The respondent asserted she ran a poultry business but adduced no evidence of financial means. The court therefore doubted her capacity to refund the decretal sum, and found the claim that donated charitable funds would be depleted plausible, rendering the appeal nugatory absent stay.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin limbs of arguability and nugatory aspect.
  • An arguable appeal need not succeed; it is enough that it is not frivolous, and even one arguable ground suffices.
  • Where an applicant alleges that an appeal will be rendered nugatory on account of the respondent's impecunity, the onus shifts to the respondent to rebut the allegation with evidence.

Court orders

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  1. 1.Stay of execution of the orders of the Employment and Labour Relations Court dated February 23, 2022 pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide by the outcome of the intended appeal

Authorities

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Legislation

  • Rules of the Court of Appealrule 5(2)(b)
  • Employment Actsections 41 and 43

Cases cited (4)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Joseph Gitahi Gachau & another v Pioneer Holdings (A) Ltd & 2 others
    Civil Application No 124 of 2008
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No Nai 345 of 2004
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] eKLR
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Case No. E572 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Article 19; Global Campaign for Free Expression v Waswa (Civil Application E073 of 2022) [2024] KECA 139 (KLR)", Case Analysis (2024). Civil Application (rule 5(2)(b)) arising from ELRC Case No. E572 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/139/eng@2024-02-16

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