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Court of AppealDismissedCivil Appeal No 128 of 2017

Obuya Bagaka v Kenya School of Government [2019] KECA 666 (KLR)

Court of Appeal
5 April 2019
2,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a dismissed employee's bid for urgent court orders, ruling that a court cannot preserve a decision the employer had already made.

What this practically means

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Executive summary

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This interlocutory appeal arose from the ruling of Ndolo, J of the Employment and Labour Relations Court dismissing Obuya Bagaka's Notice of Motion seeking conservatory orders to stay his termination from the Kenya School of Government and his eviction from staff accommodation. The appellant had filed a petition in November 2016 challenging an interdiction imposed in March 2016 for, among other things, allegedly unauthorised public statements about the institution's finances and unauthorised outside consultancy. By the time the motion was heard, the respondent's Council had, on 14th October 2016, resolved to dismiss him. The trial judge held there was no decision left to stay and dismissed the motion with costs. The Court of Appeal (Githinji, Okwengu and Mohammed, JJ.A) restated the Mbogo v Shah standard: it interferes with discretionary interlocutory rulings only where the judge misdirected herself, acted on wrong considerations, or was clearly wrong. Applying the Supreme Court's delineation in Gatirau Peter Munya between injunctions and conservatory orders, the Court confirmed its own jurisdiction to grant conservatory relief but found that the dismissal decision predated the petition, leaving nothing to preserve; any violations could be remedied at the full hearing. Additional evidence (the dismissal letter and bank statements) was admitted by consent but did not alter the outcome. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court correctly dismissed the appellant's application for orders of injunction
  2. 2.Whether the learned Judge erred in holding that the appellant had already been dismissed from the respondent's employment
  3. 3.Whether the Court of Appeal may interfere with the trial judge's discretion in refusing interlocutory/conservatory relief

Key legal issues

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01

Test for appellate interference with discretionary interlocutory orders

Holding

The appellant had to show the learned Judge took into account irrelevant matters, failed to take relevant ones into account, or that her decision was clearly wrong; he failed to do so.

Reasoning

The Court restated the Mbogo v Shah principle as adopted in Kenya Hotel Properties Limited v Willesden Investments: discretion is not disturbed merely because the appellate court would have exercised it differently. The appellant's grounds did not demonstrate any of the recognized grounds of interference, so the ruling below stood.

p. 3
02

Whether conservatory orders were available where the impugned decision had already been made before filing

Holding

Because the Council resolved to dismiss the appellant on 14th October 2016 before the petition and Notice of Motion were filed on 8th November 2016, there was no decision left to stay; the relief was overtaken by events and any violations could only be remedied at the full hearing.

Reasoning

The Court agreed with the trial judge's finding that the dismissal decision preceded the filing. The purpose of conservatory orders is to preserve the substratum of a case pending determination; where the employer's decision had already crystallised, no such preservation was possible, and the appellant's remedies lay in the substantive petition.

p. 4
03

Distinction between injunctive and conservatory orders and the court's jurisdiction to grant both

Holding

Injunctions are private-law interlocutory orders based on convenience and balance of probability, while conservatory orders bear a public-law connotation; the appeal as framed concerned conservatory orders, which this Court has jurisdiction to grant.

Reasoning

Relying on Gatirau Peter Munya, the Court delineated the two remedies, and relying on Njuguna S. Ndung'u and Alfred N. Mutua confirmed its own competence to grant conservatory relief. It thus rejected the respondent's argument that only injunctions were sought and proceeded to analyse the application as one for conservatory orders.

p. 3

Legal principles established

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  • An appellate court interferes with the exercise of judicial discretion on interlocutory relief only where the lower court misdirected itself, acted on wrong matters, or reached a clearly wrong decision
  • Conservatory orders differ from interlocutory injunctions and are granted on the inherent merit of the case bearing in mind the public interest, constitutional values and proportionate magnitudes, not merely private-party irreparable harm or probability of success
  • The Court of Appeal has jurisdiction to grant interlocutory injunctive, conservatory and stay-of-proceedings reliefs
  • The Giella v Cassman Brown conditions for interlocutory injunction are applied as separate, distinct and logical hurdles to be surmounted sequentially

Court orders

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  1. 1.The appeal was dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Nairobi
Petition No 135 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over interlocutory appeals from the Employment and Labour Relations Court; additional evidence admitted under rule 29 of the Court of Appeal Rules

Relief refused

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Setting aside the ruling and order of the E&LRC and granting conservatory orders pending the petition

The decision to dismiss the appellant had already been made by the respondent's Council before the petition was filed, so there was no decision to stay and any violations could be remedied at the full hearing

p. 4

Costs

The appeal was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To succeed in this appeal therefore, the appellant must demonstrate that the learned Judge took into account matters that he should not have or that he failed to take into account matters that he should have or that his decision is clearly wrong.
p. 3Appellate interference with judicial discretion
Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
p. 3Nature of conservatory orders
It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
p. 4Sequential application of the Giella v Cassman Brown conditions
In the result and for the aforegoing reasons, we have no reason to disturb the finding of the learned Judge. Accordingly this appeal is without merit and it is hereby dismissed with costs to the respondent. It is so ordered.
p. 4Final orders and disposition

Issues in the judgment

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minor

The judgment inconsistently names the trial court: the appeal is from the Employment and Labour Relations Court, but the framed issue refers to the 'High Court'

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, "Obuya Bagaka v Kenya School of Government [2019] KECA 666 (KLR)", Case Analysis (2019). Civil Appeal No 128 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/666/eng@2019-04-05

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