County Government of Laikipia & another v Wahome & 114 others; Transitional Authority & another (Interested Parties) (Civil Application E008 of 2022) [2023] KECA 215 (KLR)
The bottom line
#Kenya's Court of Appeal paused a KES employment judgment ordering reinstatement and pay for 115 former county workers until their appeal is decided.
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
- 2.Whether, unless stay of execution is granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the applicants had an arguable appeal
The court was satisfied the appeal was arguable, particularly on whether the respondents were rightful employees of the first applicant, without making definitive findings.
The court perused the annexed memorandum of appeal and found the appeal arguable and worthy of consideration, especially on the question whether the respondents were rightful employees. It deliberately refrained from further comment to avoid embarrassing the bench that would eventually hear the appeal, consistent with the settled principle that no definitive findings of fact or law are made at the stay stage.
Whether the appeal would be rendered nugatory if stay was not granted
Payment of the disputed emoluments to the 115 respondents would amount to loss of public funds, as the respondents may not be able to refund if the appeal succeeds.
The court reasoned that if the 115 respondents were paid the disputed salaries and the appeal later succeeded, recovery would be doubtful because their sources and means of income were unknown. Loss of public funds on irrecoverable payments would render the intended appeal nugatory, satisfying the second limb of the rule 5(2)(b) test.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay.
- The discretion under rule 5(2)(b) is wide and unfettered provided it is just to do so, and the applicant must satisfy both twin principles.
Court orders
#- 1.Stay of execution of the judgment and all consequential orders of the Employment and Labour Relations Court in Nakuru ELRC Cause No 382 of 2013 dated October 21, 2021 pending the lodging, hearing and determination of the intended appeal, granted in terms of prayer 4 of the motion
- 2.Costs of the motion to abide the outcome 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
- Nakuru ELRC Cause No 382 of 2013
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Cap 9 and rule 5(2)(b) of the Court of Appeal Rules, 2010
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.
Ultimately, therefore we are satisfied that the applicants have demonstrated and satisfied the twin principles for consideration by this court for granting of orders of stay of execution pursuant to rule 5 (2) (b) of this Court.
The upshot of the foregoing is that the motion dated December 9, 2021 is merited and the same is allowed in terms of prayer 4 thereof.
The costs of this motion shall abide the outcome of the intended appeal.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.
Issues in the judgment
#The case number of the application itself is not stated in the judgment; only the date of the motion (December 9, 2021) and the lower-court case (Nakuru ELRC Cause No 382 of 2013) are given.
The first respondent's replying affidavit refers to respondents in the plural and the judgment refers to 115 respondents, but only Patrick Kariithi Wahome is named in the record before the court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Laikipia & another v Wahome & 114 others; Transitional Authority & another (Interested Parties) (Civil Application E008 of 2022) [2023] KECA 215 (KLR)", Case Analysis (2023). Nakuru Civil Application No. of 2021 (Motion dated December 9, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/215/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.