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ELRCAllowedNotice of Motion dated 5th December, 2014 (in the petition challenging appointment as Managing Director, KBC)· [2015] KEELRC 1526 (KLR)

Jared Juma v Kenya Broadcasting Corporation & 2 others [2015] KEELRC 1526 (KLR)

Employment and Labour Relations Court
6 February 2015
942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court paused enforcement of its ruling on KBC's Managing Director appointment, reasoning the fixed-term contract would expire before any appeal could be heard.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th December 2014, the Applicant, who had lost a petition challenging his appointment as Managing Director of the Kenya Broadcasting Corporation, sought a stay of execution of the court's judgment delivered the same day pending an intended appeal, a Notice of Appeal having been filed on 5th December 2014. The application was supported by the affidavit of Patia Khisa, Advocate, and a supplementary affidavit of Engineer Edward Musebe, Chairman of the KBC Board, defending the age limit requirement for the Managing Director. The Petitioner/Respondent opposed through grounds of opposition and a replying affidavit, arguing that the Applicant had not shown irreparable harm or an arguable appeal, and that the appeal was an abuse of process intended to buy time for a second term obtained in violation of the Constitution. The court applied the Court of Appeal test in African Safari Club Ltd v S. Sate Rentals Ltd, namely an arguable appeal and the nugatory-ness of the appeal if stay is refused, subject to the overriding objective. It found the appeal arguable, noted the Applicant's fixed term contract could expire before the appeal was heard making successful reinstatement impossible, and accepted, citing the Supreme Court's Munya decision as urged by the Petitioner, that public interest favoured conserving the status quo at KBC. The application succeeded and stay of execution pending appeal was granted on 6th February 2015. No costs order is recorded.

Key legal issues

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01

Whether the appeal is arguable

Holding

The court found the appeal arguable after considering the issues raised against its judgment and the submissions.

Reasoning

The court reviewed the papers on record and the parties' submissions and concluded that the intended appeal was not frivolous, satisfying the first condition for stay as set out in the Court of Appeal authority relied upon.

p. 3
02

Whether the appeal would be rendered nugatory without stay

Holding

Stay was warranted because the Applicant held office on a fixed term contract which could expire before the appeal was heard, making reinstatement impossible if the appeal succeeded.

Reasoning

The court reasoned that the fixed term nature of the Applicant's employment meant his removal could become irreversible; if the appeal succeeded he could not be restored to the leadership position, rendering the appeal nugatory, whereas if it failed the Respondent could implement the decision in future appointments.

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03

Public interest and balance of convenience

Holding

It was in the public interest that the status quo at Kenya Broadcasting Corporation be conserved pending determination of the constitutionality of the Applicant's appointment.

Reasoning

Relying on the Petitioner's invocation of the Munya decision, the court accepted that because the dispute involves a public institution, public interest weighs in favour of maintaining normalcy at KBC; if the appeal failed, KBC would still be guided in future appointments since the Applicant holds the post on a fixed term.

p. 3

Legal principles established

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  • An applicant for stay pending appeal must show an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; these requirements are subject to the overriding objective.
  • Public interest is relevant to the balance of convenience in stay applications involving public institutions.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 5th December 2014 granted pending the hearing and determination of the intended appeal

Authorities

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Cases cited (2)

  • African Safari Club Limited versus S. Sate Rentals Limited
    Civil Application No. NAI 53 of 2010 (UR 33/2010)
  • Gitarau Peter Munya V. Dickson Mwende Kithinji & 2 Others
    [2014]
Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending appeal from its own judgment

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, "Jared Juma v Kenya Broadcasting Corporation & 2 others [2015] KEELRC 1526 (KLR)", Case Analysis (2015). Notice of Motion dated 5th December, 2014 (in the petition challenging appointment as Managing Director, KBC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1526/eng@2015-02-06

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