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Court of AppealDismissedCivil Application No. 159 of 2004· [2007] KECA 239 (KLR)

Staff Disciplinary Committee, Maseno University & 2 others v Republic Ex-Parte Ochong’ Okello [2007] KECA 239 (KLR)

Court of Appeal of Kenya
12 October 2007
990 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court ruling that quashed Maseno University's dismissal of a professor, because winning the appeal later could still undo the damage.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (O'Kubasu, Onyango Otieno and Deverell JJA) disposed of an application under rule 5(2)(b) of the Court of Appeal Rules by three organs of Maseno University - the Staff Disciplinary Committee, the Council and the Vice Chancellor - seeking a stay of execution of orders of the High Court at Kisumu (Warsame, Ag. J) dated 10th June 2004 in H.C. Misc. Application No. 227 of 2003. Those orders had quashed the committee's decision of 19th June 2003, conveyed by letter of 20th June 2003, summarily dismissing Prof. Ochong' Okello for allegedly causing the University to lose Kshs. 1,238,698/= paid to Fahari Contractors, and had prohibited the University from taking further adverse proceedings against him over that payment. A notice of appeal had been lodged on 15th June 2004, and a stay was sought pending that intended appeal. The court restated the settled twin test for rule 5(2)(b) relief, citing Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd, Githunguri v Jimba Credit Corporation Ltd (No. 2) and J.K. Industries Ltd v Kenya Commercial Bank Ltd: the applicant must show an arguable appeal and that refusal of the stay would render the appeal nugatory. The court accepted that whether the dismissal without a hearing breached natural justice was at least arguable, while expressly declining to indicate which way that issue was likely to be resolved. The nugatory limb failed: even if the intended appeal succeeded, the applicants would still be able to pursue the alleged payment from third parties and to dismiss the professor. The application was accordingly dismissed with costs on 12th October 2007, leaving the High Court's orders intact pending the intended appeal.

Key legal issues

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01

What principles govern an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules?

Holding

The twin test applies: the applicant must show that the appeal or intended appeal is arguable (not frivolous), and that if the stay or injunction is not granted, the appeal, were it to succeed, would be rendered nugatory.

Reasoning

The court restated the now well-settled principles governing rule 5(2)(b) applications, adopting the twin requirements of arguability and the nugatory aspect as stated in Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd, Githunguri v Jimba Credit Corporation Ltd (No. 2) and J.K. Industries Ltd v Kenya Commercial Bank Ltd. Both limbs must be satisfied before a stay or injunction pending appeal can issue. This statement of the governing test is the operative standard the court applied and the rule lower courts must follow.

p. 2
02

Was the intended appeal arguable?

Holding

Yes. Whether the failure to give the respondent a hearing before reaching the decision to dismiss him amounted to a breach of natural justice was at least an arguable issue.

Reasoning

The dismissal letter recorded that the Staff Disciplinary Committee meeting of 19th June 2003 considered the professor's case in absentia after he failed to attend, and summarily dismissed him. On that material the court found an arguable issue whether the failure to give him a hearing before the dismissal decision amounted to a breach of natural justice. The court was careful to state that, on an interlocutory stay application, it would give no indication of which way the issue was likely to be resolved at the hearing of the appeal.

p. 2
03

Would refusal of the stay render the intended appeal nugatory?

Holding

No. Even if the intended appeal succeeded, the applicants would still be able to pursue the alleged payment from third parties and to dismiss the respondent, so the nugatory limb failed and the application could not stand.

Reasoning

The court examined both components of the orders sought to be stayed: the quashing of the 19th June 2003 dismissal decision and the prohibition on further adverse proceedings concerning the Kshs. 1,238,698/= paid to Fahari Contractors. It concluded that success on the intended appeal would not be rendered nugatory by refusal of the stay, because the applicants would remain able to pursue the alleged payment to third parties and, in any event, to dismiss the respondent. The application therefore failed the second limb and was dismissed with costs.

p. 3

Legal principles established

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  • An applicant for a stay of execution or an injunction under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin tests: that the appeal or intended appeal is arguable (not frivolous), and that if the stay or injunction is not granted the appeal, were it to succeed, would be rendered nugatory.
  • On a stay application the Court does not give any indication of its views as to which way the arguable issue is likely to be resolved at the hearing of the appeal.
  • Refusal of a stay does not render an appeal nugatory where the applicant would, even if the appeal succeeded, still be able to pursue the underlying claim against third parties and to give effect to the impugned decision.

Court orders

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  1. 1.The application for stay of execution is dismissed with costs.
On appeal from
High Court of Kenya, Kisumu
H.C. Misc. Application No. 227 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution or injunction pending an intended 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, "Staff Disciplinary Committee, Maseno University & 2 others v Republic Ex-Parte Ochong’ Okello [2007] KECA 239 (KLR)", Case Analysis (2007). Civil Application No. 159 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/239/eng@2007-10-12

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