Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. NAI 165 of 2015 (UR 133/2015)

Maasai Mara University v Daniel K. Cheboi & 3 others [2015] KECA 271 (KLR)

Court of Appeal
30 October 2015
AVAlnashir VisramPhilomena Mbete MwiluP. M. MwiluSKS. ole Kantai
2,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused a ruling reinstating four former university staff, including a cashier, because putting a distrusted employee back in a trusted job risked serious losses.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Visram, Mwilu and Kantai, JJ.A.) on a notice of motion under rule 5(2)(b) of the Court of Appeal Rules, 2010 and section 17 of the Industrial Court Act, 2011, by Maasai Mara University seeking stay of execution of a judgment of the Employment and Labour Relations Court at Nakuru (Radido, J.) delivered on 8th May, 2015, which ordered reinstatement of the respondent, a cashier summarily dismissed by the university. The ruling was by consent applied to three consolidated applications against Cheboi, Okemwa, Mutwo and Kitaia. The court reviewed its jurisprudence on stay applications: while negative orders incapable of execution cannot be stayed, in employer-employee reinstatement cases the court confines itself to the strict rule 5(2)(b) principles of arguability and nugatory-ness, informed by the balance of convenience and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. It found the intended appeal arguable on whether the trial court could order specific performance in an employment contract contrary to section 49 of the Employment Act, and found the appeal would be rendered nugatory because the respondent occupied a position of trust as cashier and trust had been lost. The court granted a stay of execution of the trial court's judgment pending hearing and determination of the intended appeal, with costs of the application to abide the appeal. The orders applied to the consolidated applications. No separate opinions were delivered.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory
  3. 3.Whether a stay of execution can issue where the order of reinstatement has been complied with (technically reinstated by payment of salary without assigning duties)

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The court held the appeal arguable because the trial court's order of reinstatement raised the question whether specific performance in an employment contract was permissible.

Reasoning

The draft memorandum of appeal alleged that the trial judge violated section 49 of the Employment Act by ordering reinstatement without considering the statutory circumstances of termination, practicability of reinstatement, and the common-law bar on specific performance of personal service contracts. The court found this obviously arguable, satisfying the first principle under rule 5(2)(b).

p. 6
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The court held the appeal would be rendered nugatory because reinstating the respondent to a position of trust as cashier, where trust had been lost, could result in loss of money.

Reasoning

Adopting the balance-of-convenience approach in Kenya Revenue Authority v Sidney Keitany Changole, the court reasoned that the respondent was a cashier in a position of trust; trust had been lost and any loss of money pending the appeal would render the intended appeal nugatory. The court also noted employers who demonstrate risk from employees in positions of trust have been granted stay even after compliance with reinstatement orders.

p. 6
03

The effect of partial or technical compliance with a reinstatement order on a stay application

Holding

The court held this was not an ordinary situation of staying an interim order; where the employer has technically reinstated (paying salary but not assigning duties), the strict rule 5(2)(b) principles apply rather than the negative-order doctrine.

Reasoning

The court reviewed its past decisions distinguishing negative orders incapable of execution (Executive Estates) from reinstatement cases (Co-operative Bank v BIFU; KRA v Changole) where courts applied the two principles notwithstanding compliance. It held that compliance with reinstatement does not extinguish the jurisdiction, and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act supports the balance-of-interests approach.

p. 3

Legal principles established

#
  • An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
  • The court should first consider the nature of the order intended to be stayed and whether the decree has been satisfied before applying the two principles; negative orders incapable of execution cannot be stayed.
  • In employer-employee reinstatement cases, the court confines itself to the strict rule 5(2)(b) principles (arguability and nugatory-ness) and the balance of interests, even where the reinstatement order has been complied with.

Court orders

#
  1. 1.Stay of execution of the judgment of the Employment and Labour Relations Court delivered on 8th May, 2015 pending hearing and final determination of the intended appeal
  2. 2.The orders apply to the consolidated applications
  3. 3.Costs of the application shall abide the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

AV
majority
Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
SK
majority
On appeal from
Employment and Labour Relations Court at Nakuru
Cause No. 249(C) of 2013
Jurisdiction invoked
Rules 5(2)(b), 41 and 47(1) of the Court of Appeal Rules, 2010 and section 17 of the Industrial Court Act, 2011
Consolidated with
Civil Application No. NAI 166 of 2015 (UR 134/2015) - Maasai Mara University v Peter M. Okemwa, Civil Application No. NAI 167 of 2015 (UR 135/2015) - Maasai Mara University v William Morogo Mutwo, Civil Application No. NAI 168 of 2015 (UR 136/2015) - Maasai Mara University v Amos Sasine Kitaia

Relief refused

#

Staying reinstatement of the respondent back to employment until further orders of the Court (as framed in the notice of motion)

The court granted a general stay of execution of the judgment rather than a distinct order in those terms; the respondent's compliance-based reinstatement was addressed within the stay analysis

Costs

Costs of the application shall abide 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.

We are satisfied that the applicant has satisfied the principles upon which an applicaiton of this nature is granted and we therefore grant a stay of execution of the judgment of the trial court pending hearing and final determination of the intended appeal.
p. 6Final orders - stay granted
Costs of the application shall abide the appeal. These orders apply to the consolidated applications.
p. 6Costs and application of orders to consolidated applications
For an applicant to succeed, he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
p. 3Rule 5(2)(b) principles
The Court has refused to look at the nature of the order and confined itself to a strict interpretation of the principles upon which an application for stay of execution pending appeal is granted.
p. 4Approach in reinstatement cases
Whether or not it was right for the trial court to order specific performance in an employment contract is obviously an arguable point in the intended appeal.
p. 6Arguability - specific performance in employment contracts

Issues in the judgment

#
minor

The respondent's name in the consolidated application No. NAI 167 of 2015 is spelled inconsistently within the judgment ('Willaim Morogo Mutwo' and 'William Morogo Mutwo' versus 'William Morogu Mutwo' in the caption and 'Amos Sasine Kitaia' versus 'Amos Sasine Kitaika')

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Maasai Mara University v Daniel K. Cheboi & 3 others [2015] KECA 271 (KLR)", Case Analysis (2015). Civil Application No. NAI 165 of 2015 (UR 133/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/271/eng@2015-10-30

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