Kenya Council of Employment and Migration Agencies v Attorney General & 3 others; State Department for Public Service & 3 others (Interested Parties) [2021] KECA 657 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an employment ruling, confirming that a stay application fails unless it shows both a real appeal and something reversible to stay.
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 under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeal would be rendered nugatory if the order of stay sought is not granted
Key legal issues
#Whether the intended appeal was arguable
The intended appeal was not arguable; the learned Judge correctly found that the advertisement underlying the intended consent had been cancelled, rendering the orders of B. Ongaya, J. overtaken by events.
The court applied the Stanley Kangethe Kinyanjui threshold and found nothing arguable in the applicant's contention that the consent of 9th January 2020 remained alive or that the Judge lacked jurisdiction to revise Ongaya J's orders. The record explicitly showed the advertisement was cancelled on 4th and 5th January 2020, so the Judge's conclusion was unimpeachable and the first limb failed.
Whether the intended appeal would be rendered nugatory if stay was not granted
The second prerequisite also failed because, the advertisement having been cancelled, there was nothing capable of being stayed.
The court applied Reliance Bank Ltd v Norlake Investments Ltd: stay depends on whether the thing to be stayed is reversible or whether damages would compensate. Since the substratum of the intended consent — the advertisement — had been cancelled, there was nothing in existence capable of being stayed, and the applicant could not satisfy this limb either. Both limbs being unsatisfied, no relief under Rule 5(2)(b) was available.
Legal principles established
#- An arguable appeal is not one which must necessarily succeed, but one which is not frivolous; a single bona fide arguable ground suffices.
- Both limbs of the Rule 5(2)(b) test — arguability and nugatory-ness — must be satisfied before stay relief can be granted.
- The nugatory requirement depends on whether what is sought to be stayed is reversible, or if irreversible, whether damages would reasonably compensate the aggrieved party.
Court orders
#- 1.The Notice of Motion dated 22nd January 2020 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
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 Cause No. 167 of 2019
- Jurisdiction invoked
- Rules 5(2)(b) and 96 of the Court of Appeal Rules, 2020; Articles 159, 160(1) and 164(3) of the Constitution of Kenya, 2010
Relief refused
#Stay of execution of the ruling/order of O. N. Makau, J. dated 13th January 2020 pending determination of the intended appeal
The applicant failed to satisfy either of the twin prerequisites of arguability and nugatory-ness; the advertisement forming the substratum of the intended consent had been cancelled so there was nothing capable of being stayed
Liberty to consolidate the application with the Notice of Appeal arising from the ruling dated 6th January 2020 by B. Ongaya, J.
The application was dismissed in its entirety with the stay refused
Costs
The application was dismissed with costs to the respondents.
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 the result, we find that the applicant has failed to satisfy the twin prerequisites for granting of a relief under Rule 5(2)(b) of the Court Rules. The application therefore fails. It is accordingly dismissed with costs to the respondents.
The position in law is that both limbs have to be satisfied before a party can earn relief under the Rule 5(2)(b) of the Court's Rules.
A single bona fide arguable ground of appeal is sufficient to satisfy this requirement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Council of Employment and Migration Agencies v Attorney General & 3 others; State Department for Public Service & 3 others (Interested Parties) [2021] KECA 657 (KLR)", Case Analysis (2021). Civil Application No. 17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/657/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.