Ronald Kiprotich Tonui v Robert Nyabuto Obwoncha & 1 other

Court of Appeal

15 December 2017

AVAlnashir Visram WKW. Karanja

M.K. Koome

1,344 words in judgment

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AI-assisted case brief

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The bottom line

The Court of Appeal refused to pause a ruling that barred an MP from holding a union office, because he showed no real harm if elections went ahead.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Nairobi (Visram, Karanja and Koome JJ.A) on a Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of Linnet Ndolo J of the Employment & Labour Relations Court delivered on 2 September 2016 in Petition Cause No. 28 of 2016. The trial court had held that the applicant, a Member of Parliament and therefore a State Officer under Article 260 of the Constitution, was precluded by Article 77 from contesting re-election as Assistant National Treasurer of KUPPET, a trade union, and directed that elections for the position be held within sixty days. The applicant sought to defend the position in elections scheduled for 19 March 2016, contending he was qualified under the Labour Relations Act and drew no salary or allowances from the union position. Applying the settled twin test under Rule 5(2)(b) - arguability of the intended appeal and nugatory effect absent a stay - the Court restated the principles from Trust Bank v Investech Bank and Butt v Rent Restriction Tribunal. It expressed scepticism about the arguability of the appeal, found no prejudice given that the applicant earned nothing from the position and that KUPPET elections are regularly held, and held the appeal would not be rendered nugatory. The application was dismissed with no order as to costs, the respondents having not opposed it. This is an interlocutory ruling and does not determine the appeal itself.

Key legal issues

Whether the application met the twin conditions for stay under Rule 5(2)(b)

Holding

The application failed on both limbs: the Court expressed scepticism about the arguability of the appeal and found no nugatory aspect or prejudice since the applicant drew no salary or allowances from the position and elections are regularly held.

Reasoning

The Court declined to delve into the merits, noting the appeal concerns interpretation of Articles 77 and 260 of the Constitution on whether an MP is a full-time State Officer. It found the applicant did not elaborate on any prejudice, earned nothing from the KUPPET position, and that if the appeal succeeded, an election could simply be directed. The discretionary test in Trust Bank and Butt was thus not satisfied.

p. 3

Whether the applicant suffered prejudice if elections were held as ordered

Holding

No prejudice was established; the applicant was a serving MP who drew no salary or allowances from the KUPPET position.

Reasoning

Counsel asserted prejudice if elections for Assistant National Treasurer were held but did not elaborate. The Court observed the applicant earned no salary or allowances from the position and that KUPPET elections are regularly held, so a successful appeal could be remedied by directing an election.

p. 3

Legal principles established

An applicant under Rule 5(2)(b) must satisfy two conditions: that the intended appeal is arguable and that unless stay is granted the appeal, if successful, would be rendered nugatory.

Court orders

1.The application for stay of execution pending appeal is dismissed
2.No order as to costs, there having been no opposition by the respondents

On appeal from: Employment & Labour Relations Court of Kenya at Nairobi; Petition Cause No. 28 of 2016
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ronald Kiprotich Tonui v Robert Nyabuto Obwoncha & 1 other", Case Analysis (2017). Civil Appeal No. 311 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/94/eng@2017-12-15

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