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Court of AppealAllowedCivil Application No. Nai. E124 of 2020 (Motion dated August 25, 2020)· [2023] KECA 103 (KLR)

Technical University of Kenya v John Omole Owour

Court of Appeal of Kenya
3 February 2023
HOHANNAH OKWENGUPKP. O. KIAGEFSF. SICHALE
613 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a Kshs.5 million employment damages award against Technical University of Kenya until its appeal is heard and decided.

What this practically means

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Executive summary

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This is a single-paragraph ruling of the Court of Appeal at Nairobi (Okwengu, Kiage and Sichale, JJ.A) delivered on February 3, 2023 on a motion dated August 25, 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules by the Technical University of Kenya. The University sought stay of execution of a judgment of the Employment and Labour Relations Court (Wasilwa, J.) dated July 9, 2020, in which the respondent, John Omole Owuor, a senior lecturer seconded from the Teachers Service Commission, was awarded Kshs.5,000,000 in damages after the court found the University had discriminated against him by failing to absorb him following his retirement while doing so for other lecturers. The University contended it had no contractual relationship with the respondent, no obligation to absorb him, that no arrangement existed with TSC, and that the respondent had adduced no evidence of discrimination. The Court applied the established twin test under Rule 5(2)(b) - an arguable appeal and nugatory-ness - citing Stanley Kangethe Kinyanjui vs. Tony Ketter and Kieni Plains Co. Ltd vs. Ecobank Kenya Ltd. Holding both limbs satisfied, it granted the injunction and stay sought, extending to the hearing and determination of the appeal, with costs of the motion in the appeal. The decision does not disturb the judgment below; it preserves the status quo pending the intended appeal.

Key legal issues

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01

Test for stay of execution or injunction under Rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted; both requirements were met on the facts.

Reasoning

The Court restated the settled twin test under Rule 5(2)(b): arguability and nugatory-ness. It found the grounds raised - absence of a contractual relationship, alleged lack of evidence of discrimination, and no absorption arrangement with TSC - were arguable and not frivolous. It was further satisfied that execution of the Kshs.5,000,000 damages award pending appeal would render the appeal nugatory, and so granted the stay and injunction to the hearing and determination of the appeal.

p. 2

Legal principles established

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  • An arguable appeal is one that raises at least one bona fide point worthy of response and decision, and the applicant must also show the appeal would be rendered nugatory without stay or injunction

Court orders

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  1. 1.Grant of the injunction and stay of proceedings sought in the motion, extending to the hearing and determination of the appeal
  2. 2.Costs of the motion to be in the appeal
On appeal from
Employment and Labour Relations Court
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Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; a filed notice of appeal gives the Court jurisdiction to hear the application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Technical University of Kenya v John Omole Owour", Case Analysis (2023). Civil Application No. Nai. E124 of 2020 (Motion dated August 25, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/103/eng@2023-02-03

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