Kihika, Governor Nakuru County Government & 2 others v Benjam & 2 others; Kuria & 15 others (Interested Parties) (Civil Application E030 of 2023) [2023] KECA 989 (KLR)
The bottom line
#Kenya's Court of Appeal paused a ruling that nullified Nakuru County's CEC recruitment and found the Governor in contempt, pending the county's appeal.
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 applicants have an arguable appeal
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether a valid Notice of Appeal was lodged
Key legal issues
#Whether the intended appeal was arguable
Yes - the draft memorandum raised weighty issues, including whether the trial judge arrogated herself jurisdiction over a dispute with statutory remedies and whether contempt could lie for a fresh nomination process not challenged in court.
The court perused the draft memorandum of appeal and found the contention that the learned judge erred by arrogating herself jurisdiction over a dispute with statutory remedies to be a weighty issue that could not be wished away. The court was careful to say no more on arguability lest it embarrass the eventual appeal bench, but was satisfied the twin threshold was partly met.
Whether the appeal would be rendered nugatory absent stay
Yes - the 1st applicant had been found in contempt by a court possibly lacking jurisdiction, and if imprisoned she would lose her liberty, which cannot be compensated by damages.
The court reasoned that the 1st applicant had already been found in contempt by a court whose jurisdiction was under challenge; if the jurisdictional challenge succeeded on appeal, the appeal would be an exercise in futility. Further, imprisonment would entail loss of the right to liberty, an irreversible harm not compensable by damages, satisfying the nugatory prong of the Rule 5(2)(b) test.
Whether a valid Notice of Appeal had been lodged
Yes - a Notice of Appeal dated March 22, 2023 was annexed to the motion, so the objection had no basis.
The 1st respondent argued that the Court's jurisdiction had not been properly invoked because no valid Notice of Appeal was placed before the Court. The court examined the motion and found a Notice of Appeal dated March 22, 2023 annexed to it, and held the contention was without any basis.
Legal principles established
#- To obtain stay of execution under Rule 5(2)(b), an applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.
- An arguable appeal need not be one that must necessarily succeed; it suffices that it is not frivolous or idle.
Court orders
#- 1.An order of stay of execution issued staying in entirety the Ruling and Orders of Wasilwa, J dated March 21, 2023 in Nakuru ELRC Petition No 013 of 2022 consolidated with ELRC Petition No 014 of 2022, pending the hearing and determination of the intended appeal
- 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
- Petition No 013 of 2022, consolidated with ELRC Petition No 014 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
An order of Stay of Execution is hereby issued staying in entirety the Ruling and Orders of Hon Wasilwa J, dated March 21, 2023, in Nakuru ELRC Petition No 013 of 2022, Dr Magare Gikenyi J Benjamin V Nakuru County Government & 3 Others & 10 Interested Parties, Consolidated with ELRC Petition No 014 of 2022 Daniel K. Arap Bett V The Governor Nakuru County Government & 3 Others & 10 Interested Parties pending the hearing and determination of the intended appeal.
The costs of this motion shall abide the outcome of the intended appeal.
Firstly, an applicant has to satisfy that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but sufice to state that it is an appeal that is not frivolous and/or idle.
Secondly, an applicant has to demonstrate that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
Issues in the judgment
#The typed copy contains recurring typographical errors ('afidavit' for 'affidavit', 'sufice'/'sufier' for 'suffice'/'suffer', 'briefiy' for 'briefly').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihika, Governor Nakuru County Government & 2 others v Benjam & 2 others; Kuria & 15 others (Interested Parties) (Civil Application E030 of 2023) [2023] KECA 989 (KLR)", Case Analysis (2023). Civil Application No E045 of 2023 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/989/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.