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ELRCDismissedCause No 1220 of 2016· [2016] KEELRC 211 (KLR)

Paul Ndungu Ndichu v Amos Mathenge Kabutha & 2 others [2016] KEELRC 211 (KLR)

Employment and Labour Relations Court
28 November 2016
994 words in judgment
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The bottom line

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A Kenyan court dismissed a church's bid to pause enforcement of a ruling against its Archbishop, because the appeal looked weak and no real harm was shown.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Linnet Ndolo J on 28th November 2016, determined an application by the 1st Respondent (the Archbishop of the Africa Independent Pentecostal Church of Africa) for a 45-day stay of execution of a ruling by Wasilwa J delivered on 27th October 2016. That ruling had directed the Archbishop to vacate office, ordered elections within two months, and provided that the Bishop Synod Chairman, Bishop Philip Kubai, act as Spiritual Head for not more than 135 days. The applicant argued, inter alia, that the orders were issued in his absence and that he intended to appeal. The Claimant opposed, submitting that a Notice of Appeal had already been filed, rendering the court functus officio, and that no positive order capable of being stayed existed. The court first rejected the functus officio submission, holding that Order 42 Rule 6(1) of the Civil Procedure Rules affords a party the option to seek stay of execution either in the trial court or in the appellate court, so the application was properly before it. On the merits, applying the Order 42 Rule 6(2) conditions and the caselaw requirement of an arguable appeal (Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Limited), the court found the applicant had done nothing beyond filing a Notice of Appeal and had not demonstrated an arguable appeal or substantial loss. Even applying Syner-Med Pharmaceuticals Ltd v Glaxo Group Limited, the application did not make the non-frivolous mark. The application was dismissed with costs to the Claimant, and the interim orders granted on 3rd November 2016 were vacated.

Key legal issues

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01

Whether filing a Notice of Appeal renders the trial court functus officio in respect of a stay application

Holding

No - the trial court retains jurisdiction because Order 42 Rule 6(1) allows the stay application to be made in the trial court or the appellate court

Reasoning

Counsel for the Claimant relied on Rule 2 of the Court of Appeal Rules defining an appeal to include an intended appeal, arguing the Notice of Appeal rendered the court functus officio. The court held this overlooked Order 42 Rule 6(1), which expressly affords a party the option to seek stay either in the trial court or in the appellate court. The application was therefore properly before the court.

p. 2
02

Whether the 1st Respondent satisfied the conditions for stay of execution pending appeal

Holding

No - the applicant did not demonstrate an arguable appeal that would be rendered nugatory, nor substantial loss; the application failed

Reasoning

The court recited the Order 42 Rule 6(2) conditions (substantial loss, no unreasonable delay, adequate security) and the caselaw requirement of an arguable appeal. All the applicant had done was file a Notice of Appeal and the application for a 45-day stay. Even applying the Syner-Med principle that the trial court should not delve into appeal merits, the application did not make a non-frivolous mark.

p. 3

Legal principles established

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  • A party may seek stay of execution pending appeal either in the trial court or in the appellate court; filing a Notice of Appeal does not divest the trial court of jurisdiction to entertain a stay application
  • In addition to the statutory conditions in Order 42 Rule 6(2), an applicant for stay must demonstrate an arguable appeal that would be rendered nugatory if stay is not granted
  • A trial court considering an application for stay pending appeal should not venture into the merits of the appeal

Court orders

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  1. 1.The 1st Respondent's application for stay of execution pending appeal is dismissed with costs to the Claimant
  2. 2.The interim orders granted on 3rd November 2016 are vacated

Authorities

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Legislation

  • Court of Appeal RulesRule 2
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (2)

  • Banking Insurance & Financen Union (Kenya) v Murata Sacco Society Limited
    [2015] eKLR
  • Syner-Med Pharmaceuticals Ltd v Glaxo Group Limited
    [2010] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules - jurisdiction of the trial court to grant stay of execution pending appeal

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, "Paul Ndungu Ndichu v Amos Mathenge Kabutha & 2 others [2016] KEELRC 211 (KLR)", Case Analysis (2016). Cause No 1220 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/211/eng@2016-11-28

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