University Academic Staff Union (UASU) Executive, Kenyatta University Chapter & another v Kinoti & 3 others

[2] Both Civil Application No. E498 of 2021 and the current motion arise from a judgment and decree of the ELRC at Nairobi (Rika, J.) delivered on 20th August, 2021 in Petition No. E043 of 2021 consolidated with Petition No. E093 of 2021. In that judgment, the ELRC declined to grant the orders sought in Petition No. E093 of 2021 and allowed Petition No. E043 of 2021. The court further directed the appellants to update the UASU-KU Chapter’s voters’ register, and upon inspection of the register by members, hold fresh elections within 60 days of that judgment. [3] Just as in Civil Application No. E498 of 2021, the subject of the present application, is the updating of the KU Chapter Register and the fresh elections ordered by the ELRC, which the applicants herein seek to stop through orders of stay of execution of the orders, and judgment of 20th August, 2021 pending the hearing of their appeal against that judgment. The Ruling in this matter should therefore be read mutatis mutandis with the Ruling in Civil Application No. E498 of 2021. [4] The applicants maintain that they have an arguable appeal that may be rendered nugatory if the orders sought are not issued. They rely on an adavit sworn by Dr. George Lukoye Makokha (Dr. Mahokha), who claims to be the current registered Secretary of the UASU-KU Chapter. This adavit is identical to the adavit that was sworn by Dr Makokha in support of the motion in Civil Application No. E498 of 2021. The issues raised in this motion are therefore identical to the issues raised in Civil Application No. E498 of 2021. Mr. Odhiambo learned counsel who appeared for the applicants conceded as much. [5] The applicants led written submissions and supplementary written submissions as well as a list of authorities. Mr. Odhiambo orally highlighted the written submissions adding that contempt proceedings have been initiated against the applicants in the ELRC on the grounds that they have failed to organize the elections as ordered by the ELRC and therefore they stand the risk of suering irreparable loss. Counsel submitted inter alia that there is a vacuum in the leadership of the KU Chapter as a result of the orders of the ELRC; that members of the Union are not getting eective representation, and that the appeal is arguable as there is an issue relating to the validity of the elections. He, therefore, urges the Court to grant the orders sought so that the applicants can continue running the aairs of the union. [6] Ms. Masaki learned counsel who appeared for the respondents, adopted the submissions that they had led in Civil Application No. E498 of 2021. Kenyatta University which was named as an interested Party also led a replying adavit through its counsel. [7] We have carefully considered the motion before us, the applicant’s submissions, authorities cited in support thereto, as well as the oral submissions. [8] The applicants’ motion is anchored on a notice of appeal that they have led. However, as already stated, the motion raises the same issues as the motion in Civil Application No. E498 of 2021 in which the applicants herein were named as 2nd and 3rd respondents. The issues now being raised have already been addressed by this Court in the previous application. Of interest is that the applicants did not appear nor led any reply in Civil Application No. E498 of 2021. They therefore did not participate in that application and neither supported nor opposed the motion, even though the orders sought were similar to the orders that they now seek. [9] In our view the applicants have not raised any new issue that would justify this Court departing from the position already taken in Civil Application No. E498 of 2021. As per this Court’s decision in Multimedia University & Another vs. Professor Gitile N. Naituli (2014) eKLR; and Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others (2013) eKLR, the applicants’ motion having been brought under Rule 5(2)(b) of the Court of Appeal Rules, the twin requirements of arguability and the nugatory aspect must be satised. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/868/eng@2022-07-22 2

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[10] For reasons that we have stated in Civil Application No. E498 of 2021, the applicants have only met the requirement of arguability, but have not satised this Court that their intended appeal would be rendered nugatory. As the applicants had to satisfy the twin requirement of arguability and the nugatory aspect, this motion fails. It is accordingly dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF JULY, 2022. HANNAH OKWENGU ................................................... JUDGE OF APPEAL S. ole KANTAI ................................................... JUDGE OF APPEAL A. MBOGHOLI MSAGHA ................................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/868/eng@2022-07-22 3

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