County Executive of Kisumu & 2 others v Kisumu County Assembly Service Board & 5 others [2015] KECA 667 (KLR)
The bottom line
#Kenya's Court of Appeal temporarily froze Kisumu County's leadership changes for sixty days, confirming that even one arguable appeal point can justify interim relief.
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 applicants have an arguable appeal
- 2.Whether the intended appeals will be rendered nugatory if stay and injunction pending appeal are not granted
- 3.Whether substantial injury to the respondents should be weighed in balancing the parties' competing interests
Key legal issues
#Whether the applicants had an arguable appeal
The applicants had an arguable appeal on jurisdiction (whether the Speaker's relationship with the County Assembly is an employer/employee relationship within the Industrial Court's jurisdiction), admission of electronic evidence, and violation of constitutional rights under Articles 47 and 236(b).
The court found that although the applicants had earlier succeeded in having the petition transferred to the Industrial Court on jurisdictional grounds, the nature of the relationship between a speaker and a county assembly remained an outstanding issue deserving consideration. It also identified the electronic evidence question under Section 106B of the Evidence Act and the findings on Articles 47 and 236(b) as arguable, holding that even one arguable point suffices.
Whether the intended appeals would be rendered nugatory if stay and injunction were not granted
The intended appeals would be rendered nugatory if stay was not granted, given the dispute over the regularity of the impeachment and redeployment resolutions and the public interest considerations.
The applicants contended the County Assembly regularly impeached the Speaker and that reinstating the removed officials before the appeals were heard would be against public interest. The respondents disputed the regularity of those resolutions. Weighing the substratum of the appeals and the circumstances, the court concluded the success of the appeals would be worthless or futile absent interim relief.
Balancing the competing interests of the parties in granting interim relief
The court endorsed consideration of substantial injury to the other parties and balanced the interests by granting the injunction and stay only for a limited period of sixty days.
The court acknowledged that the applicants' action was affecting the lives of the 2nd, 5th and 6th respondents, adopting the Nken v. Holder principle that substantial injury to other parties when stay is granted must be considered. To balance the competing interests, it granted the relief but limited it to sixty days within which the appeals were to be lodged and determined.
Legal principles established
#- An application under Rule 5(2)(b) is not an appeal; the court cannot determine the merits of the intended appeal at that stage.
- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if the orders sought are not granted.
- Even one arguable point suffices to establish an arguable appeal.
- The meaning of 'nugatory' extends beyond worthlessness to include what is trifling, and depends on the substratum of the appeal and the circumstances of each case.
- Substantial injury to other parties' interests when stay is granted is a relevant consideration in balancing competing interests.
Court orders
#- 1.Consolidation of Civil Application No. 4 of 2015 and Civil Application No. 5 of 2015
- 2.Orders of injunction and stay pending appeal granted for a period of sixty (60) days within which the applicants should lodge their appeals and have them determined
- 3.Costs of the applications to be in the intended appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Industrial Court at Kisumu
- Industrial Petition No. 297 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (limited original jurisdiction for interlocutory relief pending appeal)
- Consolidated with
- Civil Application No. 5 of 2015
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.
An application under Rule 5(2) (b) of the Court of Appeal Rules is not an appeal. It is an application for an interlocutory relief, call it a transient relief if you like.
The applicant for such orders has to demonstrate that he has an arguable appeal and that if the orders sought are not granted, his appeal or intended appeal will be rendered nugatory.
And it is not necessary that several substantial issues should be raised. Even one arguable point suffices.
What would render the success of an appeal worthless, futile, invalid and or trifling if stay is not granted is dependent on the substratum of the appeal and circumstances of each case.
To balance the parties’ competing interests, we grant the orders of injunction and stay pending appeal sought in the two applications for a period of sixty (60) days within which the applicants should lodge their appeals and have them determined. The costs of these applications shall be in the intended appeals.
Issues in the judgment
#The judgment refers inconsistently to the sixth respondent's name - the caption reads 'Peter Odero Anditi' while one passage uses 'Peter Odero Onditi'.
The judgment is internally inconsistent on the date of the resolution suspending the Service Board - the opening paragraph states 15th October 2014 while the sixth respondent's affidavit refers to 14th October 2014.
The judgment inconsistently describes the office for which Eliud Owen Ojuok was appointed - at one point as acting Speaker and elsewhere as acting Clerk.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Executive of Kisumu & 2 others v Kisumu County Assembly Service Board & 5 others [2015] KECA 667 (KLR)", Case Analysis (2015). Civil Application No. 4 & 5 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/667/eng@2015-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.