Multimedia University & another v GNN
The bottom line
#Kenya's Court of Appeal let Multimedia University keep financial control and discipline a senior employee pending appeal, but refused to stop advertising his post.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants by citing Rule 5(2)(b) desired injunction orders as pleaded, or orders of stay of execution
- 2.Whether the applicants have presented an arguable appeal
- 3.Whether the intended appeal would be rendered nugatory if the interim orders sought were denied
Key legal issues
#Characterisation of the relief sought under Rule 5(2)(b)
Though pleaded as injunctions against executing the Industrial Court injunctions, the application was in essence for stay of execution orders under Rule 5(2)(b).
The applicants sought injunctions to restrain execution of injunction orders granted against them, which the court found anomalous and inelegant pleading. Hearing the parties, the court concluded the substance of the motion was a stay of execution, a power Rule 5(2)(b) also confers alongside injunction powers.
Arguability of the intended appeal
The conflicting interpretations of Section 76(2) of the Universities Act and the propriety of the injunctions disclosed more than one arguable ground.
Counsel for the applicants argued Section 76(2) would frustrate the university's statutory mandate under ss.34 and 35 to appoint vice-chancellors and deputies; counsel for the respondent argued the provision preserved his position as Principal. These varying standpoints satisfied the arguability threshold, which requires only a single bona fide arguable ground.
Nugatory value of orders 3 and 6
Stays of orders 3 and 6 were granted because dual control of the finance department and the bar on discipline would cause confusion, damage and loss not compensable in damages.
Having two antagonistic individuals running one department could cause confusion or damage, and restraining the employer from any disciplinary action over an employee handling a sensitive financial docket was prejudicial. The employer ought to exercise lawful disciplinary power pending the appeal, and contempt threats risked imprisonment not compensable in damages.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal would be rendered nugatory without the orders.
- A single bona fide arguable ground of appeal suffices for the arguability limb.
- In a Rule 5(2)(b) application the Court exercises original and discretionary jurisdiction, not an appeal from the trial judge's discretion.
Court orders
#- 1.Stay of Industrial Court order 3 (restraining appointment of Ag. Deputy Vice-Chancellor Prof. Njoroge to carry out finance and administration functions)
- 2.Stay of Industrial Court order 6 (restraining the applicants from taking any disciplinary action against the respondent)
- 3.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi – Industrial Court
- Industrial Court Cause No. 1200 of 2013
- Jurisdiction invoked
- Rules 5(2)(b) and 43 of the Court of Appeal Rules
Relief refused
#Stay of Industrial Court order 1 (restraining advertising of the respondent's post of Deputy Principal)
Not advertising the respondent's post will not render the intended appeal nugatory
Stay of proceedings in Industrial Court Cause No. 1200 of 2013
Would prejudice the respondent if the dispute persisted beyond his contract period; he wished the case finalized
Costs
Costs of this application will be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In all, the application is allowed to the limited extent set out above. Costs of this application will be in the appeal.
Order 3: The order which virtually stopped the appointment of Ag. Deputy Vice-Chancellor (Prof. Njoroge) to carry out the functions in the nance and administration is stayed.
Order 6: This order restrained the applicants from taking any disciplinary action against the respondent, who is still in their employment. We do grant a stay of this order.
the principles on which this Court acts, in exercise of its discretion in such a matter, is rst to decide whether the applicant has presented an arguable appeal and second, whether the intended appeal would be rendered nugatory if the interim orders sought were denied
Issues in the judgment
#Order 1 analysis states a stay will issue yet the stay is effectively refused on nugatory grounds.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Multimedia University & another v GNN", Case Analysis (2014). Civil Application 225 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/850/eng@2014-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.