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Court of AppealAllowedCivil Application No. E364/2020

Teachers Service Commission v Hellen Khamali & another [2021] KECA 765 (KLR)

Court of Appeal
19 March 2021
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused enforcement of a ruling that reinstated a teacher, because the Commission might not recover the money if its appeal succeeds.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Nambuye, Asike-Makhandia and Kantai, JJA) on a motion under rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules by the Teachers Service Commission seeking stay of execution of the judgment and decree of the Employment & Labour Relations Court at Nairobi (H. Wasilwa, J.) dated 17th September 2020 in Petition No. 184 of 2019. That judgment reinstated Hellen Khamali, a secondary school teacher whose employment the Commission had terminated, to her former position without loss of salary and benefits, with compensatory damages and costs, having found her right to fair labour practices was infringed. The Commission filed a notice of appeal and sought stay pending appeal, apprehending execution of the decree, contending the appeal was arguable and would be rendered nugatory if the judgment was enforced, as the decretal sum was colossal and unlikely to be recoverable from the 1st respondent. The 1st respondent opposed, arguing a similar application had failed in the trial court and that neither limb of the rule 5(2)(b) test was satisfied. Applying the well-established twin principles - arguability and nugatory-ness - the court found the draft memorandum of appeal raised arguable points of law concerning the Commission's statutory mandate, the documentary evidence and constitutional infringements in employment, and that recovery of the decretal amount would be an uphill task, with the 1st respondent silent on repayment. The application was allowed as prayed, with costs to abide the outcome of the appeal in the cause. The decision below was not disturbed; the judgment remains subject to the pending appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, in the absence of stay, the appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable; the grounds on the mandate of the Teachers Service Commission, the documentary evidence and the principles on infringement of constitutional rights in employment needed ventilation on appeal.

Reasoning

The court perused the draft memorandum of appeal and found the grounds raised were not idle but were certainly arguable points of law requiring determination on appeal. It reiterated that the grounds raised need not succeed for stay to issue.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory test was satisfied: the decretal amount was colossal and recovery from the 1st respondent, who had been out of employment for a long time, would be an uphill task, and she remained silent on repayment.

Reasoning

The applicant urged that the decretal amount payable was colossal and difficult to recover given the 1st respondent's prolonged absence from employment. The 1st respondent did not rebut this by indicating how she would repay the amount if the appeal succeeded, so the substratum of the appeal required preservation.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that, absent stay, it will be rendered nugatory.
  • For an arguable appeal, a single arguable issue suffices; the applicant need not establish a multiplicity of grounds, and the grounds need not succeed.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Employment & Labour Relations Court dated 17th September 2020 granted pending the hearing and determination of the appeal
  2. 2.Costs to abide the outcome of the appeal in the cause

The bench

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

majority
majority
majority
On appeal from
Employment & Labour Relations Court at Nairobi
Petition No. 184 of 2019
Jurisdiction invoked
Rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules

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.

The purpose of this rule is to preserve the substratum of the appeal.
p. 2purpose of rule 5(2)(b) stay applications
First the applicant has to demonstrate the appeal or intended appeal as the case may be, is arguable and secondly that in the absence of stay, the same shall be rendered nugatory.
p. 2twin principles for stay pending appeal
In the end we are persuaded that the applicant has met the threshold for grant of stay. The application is accordingly allowed as prayed. Costs shall abide the outcome of the appeal in the cause.
p. 2final orders and disposition

Issues in the judgment

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minor

The judgment inconsistently describes the parties, at one point calling the Teachers Service Commission "the respondent" and Hellen Khamali "the applicant", contrary to the cause title.

minor

Citations in the judgment contain typographical errors, e.g. mismatched brackets and misspelled case names.

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, "Teachers Service Commission v Hellen Khamali & another [2021] KECA 765 (KLR)", Case Analysis (2021). Civil Application No. E364/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/765/eng@2021-03-19

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