WS Insight Limited v Adam Miller [2020] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an employment case, saying WS Insight's challenge was premature because the lower court had not yet ruled on jurisdiction.
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 intended appeal is arguable
- 2.Whether, if the appeal succeeds, it would be rendered nugatory absent a stay of proceedings
Key legal issues
#Whether an arguable appeal was demonstrated where the trial court had deferred determination of jurisdiction to trial
No arguable issue arose because the trial judge did not determine jurisdiction; the question remained open for trial, so the first limb of the rule 5(2)(b) test failed.
The applicant's complaint was that the ELRC lacked jurisdiction over a dispute not founded on an employer/employee relationship. However, the Court found that the learned judge had not ruled on jurisdiction; she held that given the intricate issues of law and fact, jurisdiction would be determined after the parties adduced evidence. Since the jurisdictional question remained undetermined, no arguable point for appeal had crystallised at that juncture, and with the first limb failing, the second limb need not be considered.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory absent stay; satisfying only one limb is insufficient.
- In determining a rule 5(2)(b) application the Court exercises a distinct jurisdiction which is not an appeal from the trial judge's discretion.
Court orders
#- 1.The Notice of Motion dated 27th May 2020 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Nairobi ELRC No. 1393 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of proceedings in ELRC Cause No. 1393 of 2017 pending the hearing and determination of the application and appeal
The applicant failed to demonstrate an arguable appeal, the first limb of the rule 5(2)(b) test, since the trial court had not yet determined the question of jurisdiction
Costs
The motion dated 27th May 2020 is unmerited, and is dismissed with costs to the respondent.
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 determining an application under rule 5 (2) (b) of this Court’s Rules, it is well established that, two principles guide the Court. Firstly, an applicant is required to demonstrate that the appeal or intended appeal is arguable, or in other words, that it is not frivolous. Secondly, that unless he is granted a stay of execution or injunction as the case may be, the appeal or intended appeal, if successful, will be rendered nugatory.
In sum, the motion dated 27th May 2020 is unmerited, and is dismissed with costs to the respondent. It is so ordered.
Issues in the judgment
#The replying affidavit is dated 23rd July 2019, before the ruling under challenge of 12th May 2020; the judgment itself notes the date may be an error for 2020.
The maxim is misprinted in the judgment as 'exturpi causa oritur non axtion' instead of 'ex turpi causa oritur non actio'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WS Insight Limited v Adam Miller [2020] KECA 200 (KLR)", Case Analysis (2020). Civil (Appeal) Application No. NAI. 104 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/200/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.