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Court of AppealAllowedNot stated in the judgment (application for stay of execution from ELRC Petition Nos. 85 and 97 of 2018)

Principal Secretary, Ministry of Education, Department of Vocational & Technical Training & another v Kenya Union of Post Primary education Teachers (KUPPET) & 2 others (Civil Application E248 of 2022) [2024] KECA 683 (KLR)

Court of Appeal of Kenya
14 June 2024
1,975 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused enforcement of an order requiring the Teachers Service Commission to refund union dues until a higher court hears the full appeal.

What this practically means

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Executive summary

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This is a single-judgment decision of a three-judge bench of the Court of Appeal (Warsame, M'Inoti and Mativo, JJA) allowing an application by the Teachers Service Commission and the Cabinet Secretary, Ministry of Education, for stay of execution of a judgment of the Employment and Labour Relations Court (Onyango, J.) dated 10th December 2021. The ELRC had set aside a consent order of 15th July 2019 recorded in consolidated petitions challenging the transfer of technical and vocational trainers from the TSC to the Ministry of Education under the Technical and Vocational Training Act, and had directed the applicants to refund deducted union dues. The application was opposed by KUPPET, which challenged the validity of the notice of appeal and alleged inordinate delay; the 1st respondent, a stranger to the consent order who successfully petitioned to set it aside, appeared in person; the Attorney General supported the application. Applying the two-limb test for stay - an arguable appeal and the nugatory principle - the Court found the intended appeal arguable on issues including whether the consent order could be set aside at the instance of a non-party, res judicata, and whether the entire consent order was vitiated. It further found the appeal would be rendered nugatory given the confusion in technical training institutions, the uncertainty of recovering the refund monies, and the ELRC's own stay of its judgment quashing the TSC Circular. The Court declined to determine the validity of the notice of appeal in a stay application, holding such issues belong to a striking-out application. Stay was granted until the hearing and determination of the intended appeal, with costs of the application abiding the appeal's outcome. The judgment does not disturb the ELRC's decision, which remains subject to the intended 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, unless stay of execution is granted, the intended appeal will be rendered nugatory if it succeeds
  3. 3.Whether the validity of the notice of appeal raised by KUPPET can be determined in an application for stay of execution

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found the intended appeal arguable because it raises bona fide issues, including whether the ELRC could set aside a consent order at the instance of a non-party and whether the petition was res judicata.

Reasoning

Applying the settled two-limb test, the Court held that an arguable appeal need not succeed; it suffices that it is not frivolous and raises even a single bona fide point. The intended appeal raised three such points: setting aside the consent order at the instance of a stranger to it, res judicata, and whether the whole consent order was vitiated. The Court declined to say more, mindful not to prejudge the appeal itself.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The Court was satisfied the appeal risked being nugatory, citing the disruption to technical and vocational training, uncertainty over recovery of refund monies, and the ELRC's own stay of its judgment quashing the TSC Circular.

Reasoning

The nugatory test concerns ensuring a successful appeal is not a pyrrhic victory: the Court grants stay where what is apprehended cannot be undone, or not without undue hardship or expense, or cannot be compensated by damages. The confusion in technical training institutions, uncertainty of recovering the Kshs 58,319,613.30 refund, and the ELRC's own stay of the quashing judgment convinced the Court the nugatory criterion was met.

p. 4
03

Whether objections to the validity of the notice of appeal could be determined in the stay application

Holding

The Court declined to entertain KUPPET's objection to the notice of appeal, holding such issues are for an application to strike out the notice or record of appeal.

Reasoning

KUPPET argued the notice of appeal was invalid because it was not endorsed by the registrar, not filed in court, and not served, thereby ousting the Court's jurisdiction. The Court held that in a stay-of-execution application it cannot validly determine the validity of a notice of appeal; those questions are germane to a striking-out application and not to be decided at this interlocutory stage.

p. 3

Legal principles established

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  • An applicant for stay of execution must satisfy both the arguability and the nugatory-principle tests; satisfying only one is insufficient.
  • An arguable appeal is one that is not frivolous and raises at least a single bona fide arguable point; it need not necessarily succeed.
  • The validity of a notice of appeal is not determined in an application for stay of execution; such issues belong to an application to strike out the notice or record of appeal.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the ELRC dated 10th December 2021 until the hearing and determination of the applicants' intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nairobi
Petition arising from consolidated ELRC Petition Nos. 85 of 2018 and 97 of 2018
Jurisdiction invoked
Stay of execution pending appeal before the Court of Appeal (the specific rule invoked, e.g. Rule 5(2)(b), is not stated in the judgment)

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 applicants having satisfied both principles, we direct that there shall be a stay of execution of the judgment and decree of the ELRC dated 10th December 2021 until the hearing and determination of the applicants' intended appeal. Costs of this application shall abide the outcome of the appeal. It is so ordered.
p. 4Final orders - stay of execution granted
The applicant is obliged to satisfy both principles and will not be entitled to the order of stay by satisfying only one of them.
p. 3Dual requirement for stay of execution
an arguable appeal is not one which must necessarily succeed. It is simply one that is not frivolous or one that raises even a single bona fide arguable point that deserves to be considered and determined by the Court.
p. 3Definition of an arguable appeal
the concern of the Court is to ensure that a successful appeal does not end up as a mere pyrrhic victory or a paper judgment
p. 4Rationale of the nugatory principle
we do not think, at this stage and in an application for stay of execution, we can validly entertain the issues raised by the KUPPET on the validity of the notice of appeal that is on record.
p. 3Scope of stay application - notice of appeal validity excluded

Issues in the judgment

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minor

The judgment cites the Stanley Kangethe Kinyanjui v. Tony Ketter authority with two different year citations, [2015] eKLR when cited by the applicants and [2013] eKLR when cited by the Court.

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, "Principal Secretary, Ministry of Education, Department of Vocational & Technical Training & another v Kenya Union of Post Primary education Teachers (KUPPET) & 2 others (Civil Application E248 of 2022) [2024] KECA 683 (KLR)", Case Analysis (2024). Not stated in the judgment (application for stay of execution from ELRC Petition Nos. 85 and 97 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/683/eng@2024-06-14

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