Clerk, Nairobi County Assembly v Speaker, Nairobi City County Assembly & another [2021] KECA 518 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even a dismissed case can be 'stayed', freezing the Clerk's removal and recruitment until the appeal is heard.
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 judgment of the ELRC dismissing the applicant's petition was a negative order incapable of being stayed under Rule 5(2)(b)
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay is not granted
- 4.Whether, in the interest of justice, the substratum of the dispute should be preserved pending the hearing of the intended appeal
Key legal issues
#Whether a judgment dismissing a petition is a negative order incapable of being stayed
The court rejected the argument that a dismissal is a negative order incapable of stay; it exercised its discretion as a court of first instance and held injunctive orders can issue even where the claim below was simply dismissed.
The respondents relied on authority that a negative order commanding nothing cannot be stayed. The court associated itself with Equity Bank v West Link MBO and Daniel Lomagul Kandei v Kamanga Holdings, holding that in Rule 5(2)(b) applications the Court exercises original and discretionary jurisdiction, considering the import of the decision below, the orders sought in the intended appeal, and the preservation of the subject matter to ensure just determination of the appeal.
Whether the intended appeal is arguable
The court found the draft memorandum of appeal raised arguable, weighty and fundamental points, including allegations of collusion, ex-post alteration of the judgment, fraud, disregard of a consent judgment and an EACC opinion, and was not frivolous.
Arguability requires only a single bona fide arguable ground; the appeal need not have high chances of success. The court noted allegations that the judgment delivered in open court was materially different from the version released to parties, that the trial court ignored a consent judgment in ELRC No. 2108/2014 upholding the applicant's appointment, and that it disregarded an EACC opinion - matters going to the root of the administration of justice.
Whether the intended appeal would be rendered nugatory if stay is not granted
The court found the nugatory limb satisfied because the legality and integrity of the judgment removing the applicant was under active contestation, including a review application by the respondents themselves, and irreversible appointment to the office was threatened.
Stays preserve the integrity of the appellate process so eventual success is not a pyrrhic victory. A central question was whether a party can benefit from a process whose authority and integrity is questioned. The respondents' own review application confirmed real contestation of the judgment's legality, and the recruitment of a substantive replacement was itself heavily questioned, so the appeal would be rendered nugatory absent a stay.
Legal principles established
#- On a Rule 5(2)(b) application the Court of Appeal exercises original and discretionary jurisdiction as a court of first instance, considering the import of the superior court's decision and the nature of the orders sought, and injunctive orders may be granted even where the judgment appealed against simply dismissed the applicant's claim - a negative order is capable of being stayed.
- An applicant under Rule 5(2)(b) must satisfy both the twin principles of arguability and the nugatory aspect; proving only one will not suffice.
Court orders
#- 1.Both Mr. Edward Gichana Ombwori and Jacob Muvengei Ngwele injuncted from exercising the powers, privileges and responsibilities of the office of Clerk, Nairobi County Assembly, pending the hearing and determination of the intended appeal
- 2.A stay of execution of the judgment of the Employment and Labour Relations Court (Hon. Lady Justice M. Onyango) dated 16th October, 2020, pending the hearing and determination of the intended appeal
- 3.An order restraining the respondents from advertising, shortlisting, recruiting or appointing a substantive holder of the office of the Clerk of the Nairobi City County Assembly pending the determination of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Petition No. 194 of 2019
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
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.
We do not agree with the respondent's argument that the trial court's orders dismissing the applicant's petition is a negative order incapable of being stayed.
We think that injunctive orders can be granted even where the judgment appealed against simply dismissed the applicant's claim.
It is also incumbent on the applicant to establish both limbs and proving only one of them will not aid its case.
For clarity both Mr. Edward Gichana Ombwori and Jacob Muvengei Ngwele are hereby injuncted from exercising the powers, privileges and responsibilities of the office, Clerk, Nairobi County Assembly pending the hearing and determination of the intended appeal.
the application dated 5th November, 2020 is allowed and we hereby order that there shall be a stay of execution of the judgment of the Employment and Labour Relations Court (Hon. Lady Justice M. Onyango) dated 16th October, 2020 pending the hearing and determination of the intended appeal to this Court against the said judgment.
Further, an order is hereby granted restraining the respondents from advertising, shortlisting, recruiting or appointing a substantive holder of the office of the Clerk of the Nairobi City County Assembly pending the determination of the intended appeal.
Issues in the judgment
#The coram spells the presiding judge's surname 'NAMBUYE' while the signature block reads 'R. N. NAMUBUYE'; the ruling text also refers to 'Rule 5(2)(5)' in one instance, evidently a typographical error for Rule 5(2)(b).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clerk, Nairobi County Assembly v Speaker, Nairobi City County Assembly & another [2021] KECA 518 (KLR)", Case Analysis (2021). Civil Application No. E351 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/518/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.