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Court of AppealPartially AllowedNotice of motion dated 11th November 2022 under Rule 5(2)(b)

Kenya Medical Research Institute & another v Mwangi (Civil Application 046 of 2022) [2024] KECA 343 (KLR)

Court of Appeal
15 March 2024
1,685 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 enforcement of a reinstatement order against KEMRI, but only on condition the decretal sum is first deposited in a joint account.

What this practically means

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Executive summary

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The applicants, whose employee was dismissed for absenteeism and insubordination following disciplinary proceedings, sought stay of execution under Rule 5(2)(b) of the judgment of the ELRC (Nduma Nderi J.) which quashed the termination and ordered reinstatement with full back salary, allowances and benefits. The applicants argued the appeal was arguable - contending among other things that the disciplinary process complied with the Employment Act, that the respondent failed to exhaust internal remedies, and that reinstatement and back pay would result in dual remuneration from two state corporations contrary to public policy and Salaries and Remuneration Commission guidelines. On the nugatory limb, they cited potential loss of public funds through double salary, breakdown of the employment relationship, and the position having been filled. The respondent opposed, noting the applicants' defiance of the back pay orders and the availability of legal mechanisms to reclaim double salaries. Applying the settled Rule 5(2)(b) principles drawn from Reliance Bank v Norlake Investments, the Court found a single bona fide arguable ground in whether the disciplinary process met the Section 41 Employment Act threshold, and on the nugatory limb weighed the hardships facing both sides. Noting the applicants had not complied with the back pay orders, the Court granted conditional relief: stay of execution on condition that the decretal sum be deposited in a joint interest-earning account in the names of the parties' advocates within 30 days, with costs to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay of execution is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the applicants surmounted the first hurdle by demonstrating a single bona fide arguable ground concerning whether the disciplinary process met the threshold under Section 41 of the Employment Act.

Reasoning

The Court examined the memorandum of appeal, which raised complaints about the trial judge's finding that the disciplinary process failed to comply with Section 41 of the Employment Act, 2007 and the applicable Human Resource Manual, and about exhaustion of internal remedies under Section 74 of the Public Service Commission Act. Whether the disciplinary process was conducted in bad faith or in accordance with the Act and Manual were not frivolous issues, satisfying the arguability test.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

Both limbs were satisfied on balance, but justice required conditional rather than absolute relief given the applicants' non-compliance with the back pay orders.

Reasoning

The Court weighed the hardships on both sides: the respondent's willingness to resume duties and the hardship of losing his new position if the appeal succeeded, against the applicants' precarious position in filling a core department and the risk of losing public funds through double remuneration. Because the applicants had not complied with the back pay orders, the Court fashioned conditional relief requiring the decretal sum to be deposited.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted; a single bona fide arguable ground suffices and it need not be one that will necessarily succeed.
  • Factors which can render an appeal nugatory are to be considered within the circumstances of each particular case, weighing the conflicting claims and hardships of both sides.
  • The inability of the other side to refund a decretal sum is not the only factor that would render the success of an appeal nugatory.

Court orders

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  1. 1.Stay of execution of the decree of the ELRC granted on condition that the applicants deposit the decretal sum in a joint interest-earning account in the names of advocates for the parties within 30 days of the ruling
  2. 2.Costs to abide by the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Relief refused

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Unconditional stay of execution

The court granted only conditional stay because the applicants had not complied with the back pay orders of the trial court

p. 3

Costs

Costs shall abide by the outcome of the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application is allowed. There shall be stay of execution of the decree on condition that the applicants deposit the decretal sum in a joint interest earning account in the names of advocates for the parties within 30 days of this ruling. Costs shall abide by the outcome of the intended appeal.
p. 4Final orders - conditional stay of execution
The principles are plain that the applicants needed to demonstrate a single bona fide arguable ground and that ground need not be one which will necessarily succeed when the appeal is eventually considered.
p. 3Arguability test under Rule 5(2)(b)
In addition, the inability of the other side to refund the decretal sum is not the only thing that would render the success of the appeal nugatory.
p. 3Nugatory test - refundability not determinative

Issues in the judgment

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minor

Paragraph numbering is inconsistent in the judgment; paragraphs after paragraph 13 revert to numbering as '10.' and '11.' twice

minor

The judgment refers to a letter of termination dated 31st January, 2020 while the narrative earlier states dismissal vide a letter dated 31st July 2020

minor

The record does not name the parties beyond describing the 1st applicant as KEMRI; the full names of the 2nd applicant and the respondent are not stated

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 Medical Research Institute & another v Mwangi (Civil Application 046 of 2022) [2024] KECA 343 (KLR)", Case Analysis (2024). Notice of motion dated 11th November 2022 under Rule 5(2)(b). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/343/eng@2024-03-15

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