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 AppealAllowedCivil Application No. 86 of 2018· [2019] KECA 725 (KLR)

The Clerk County Council of Lugari v Josephat Mulongo Wekesa

Court of Appeal
21 May 2019
AMAsike MakhandiaPKP. O. KiageOTOtieno-Odek
307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal paused an employment judgment against Lugari County Council, confirming that applicants for stay need only show an arguable appeal.

What this practically means

#

Executive summary

#
This is a short interlocutory ruling of the Court of Appeal at Kisumu (Makhandia, Kiage and Odek JJ.A.) delivered on 21st May 2019 in Civil Application No. 86 of 2018. The applicant, the Clerk County Council of Lugari, sought a stay of execution of the judgment and decree of the Employment and Labour Relations Court at Bungoma (Nduma J.) dated 1st December 2017 in ELRC No. 1 of 2017, pending an intended appeal. Counsel for the applicant was present, but although served, the respondent did not appear. The court considered the application together with the respondent's replying affidavit sworn on 30th November 2018 and found the orders sought merited. Applying the established rule 5(2)(b) threshold, it held that the applicant needed only to show an arguable point to canvas on appeal - not one that must necessarily succeed - and was satisfied on that limb. It further found that the intended appeal, if successful, might be rendered nugatory absent a stay, and accordingly granted the stay orders. To encourage diligence, the court directed the applicant to file the record of appeal within 45 days, failing which the stay would lapse. It noted it was not impressed that the record of appeal had not been filed given the judgment was delivered on 1st December 2017. Costs were made to abide the intended appeal. The decision below was not disturbed; the ruling concerns only interim relief. No authorities or statutes are cited in the ruling as reproduced.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The court was satisfied that the applicant had an arguable point to canvas on appeal.

Reasoning

The court restated the settled test that an applicant for stay pending appeal need only show an arguable point, not one that must necessarily succeed. Applying that threshold, it found the test met without examining the merits in depth.

p. 1
02

Nugatory value of the intended appeal

Holding

The intended appeal would be rendered nugatory unless a stay was granted.

Reasoning

The court held that the second limb of the rule 5(2)(b) test was satisfied: if the appeal succeeded, execution of the decree in the meantime would render it nugatory. It therefore exercised its discretion in favour of the applicant, while conditioning the stay on filing the record of appeal within 45 days.

p. 1

Legal principles established

#
  • An applicant under rule 5(2)(b) need only demonstrate an arguable appeal, not one that must necessarily succeed, together with the nugatory aspect.

Court orders

#
  1. 1.Stay of execution of the judgment and decree of the ELRC at Bungoma dated 1st December 2017 pending appeal granted
  2. 2.Applicant directed to file the record of appeal within forty five (45) days, failing which the stay orders shall lapse
  3. 3.Costs shall be in the intended appeal
On appeal from
Employment and Labour Relations Court of Kenya at Bungoma
ELRC No. 1 of 2017 (Formerly Kisumu Cause No. 3 of 2017)
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

#

Cite this brief

Caselaw, "The Clerk County Council of Lugari v Josephat Mulongo Wekesa", Case Analysis (2019). Civil Application No. 86 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/725/eng@2019-05-15

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