Judicial Service Commission v Njau (Civil Appeal (Application) E051 of 2024) [2024] KECA 859 (KLR)
The bottom line
#Kenya's Court of Appeal paused an employee's reinstatement pending appeal, but ordered she still receive half salary in the meantime.
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 application for stay of execution is competent, contingent on a notice of appeal having been filed under Rule 77
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory if stay is not granted
Key legal issues
#Competence of the stay application
The application was competent because a notice of appeal had been filed and the appeal was on record.
Rule 5(2)(b) requires that the Court's stay jurisdiction be triggered by a filed notice of appeal under Rule 77. The applicant had filed its notice of appeal and Civil Appeal No. E126 of 2024 was pending. The respondent's challenge to the competence of the application was abandoned at the hearing.
Arguability of the intended appeal
The appeal was arguable; one bona fide arguable point suffices and need not be one that must succeed.
The memorandum of appeal raised four grounds, including whether reinstatement could be ordered without proof of exceptional circumstances under section 49(4) of the Employment Act and whether the judge followed precedent on reinstatement. An arguable appeal is one not frivolous but bona fide deserving of determination.
Nugatory-ness and impecuniosity of the respondent
The appeal would be rendered nugatory if reinstatement with full salary proceeded and could not later be reversed or recovered.
The respondent admitted in her affidavit she was unable to meet her financial obligations and adduced no evidence of financial means to rebut the allegation that she could not refund salaries drawn if the appeal succeeded. As an Accounts Assistant in a position of trust, her return to the accounts office pending appeal would create an awkward situation if the appeal succeeded.
Legal principles established
#- The Court of Appeal's jurisdiction to stay execution under Rule 5(2)(b) is contingent on a notice of appeal having been filed under Rule 77
- A stay applicant must establish the twin principles that the appeal is arguable and that it will be rendered nugatory if stay is declined
- Where an applicant alleges that an appeal will be rendered nugatory on account of the respondent's impecunity, the onus shifts to the respondent to rebut the allegation by evidence
Court orders
#- 1.Pending the hearing and determination of Civil Appeal No. E126 of 2024, an order of stay of execution of the judgment and decree of the Employment and Labour Relations Court dated 20th December 2023
- 2.The respondent shall, in the meantime, be on half salary
- 3.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. E766 of 2021
- Jurisdiction invoked
- Rules 5(2)(b), 43 and 44(1)&(2) of the Court of Appeal Rules, contingent on a notice of appeal under Rule 77
Relief refused
#A full stay suspending all obligations under the judgment, including payment of salary
The Court balanced the parties' interests, staying reinstatement but leaving the respondent on half salary pending appeal
Costs
The costs of this application shall be in the appeal.
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.
It is trite law that the applicant need not show a multiplicity of arguable points. One arguable point is suficient to satisfy the first principle.
Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent’s impecuniosity, the onus shifts to the latter to rebut by evidence the claim.
Pending the hearing and determination of the appeal, being Civil Appeal No. E126 of 2024: i. An order of stay of execution of the judgment and decree of the Employment and Labour Relations Court dated 20th December 2023 do issue; ii. The respondent shall, in the meantime, be on half salary;
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Njau (Civil Appeal (Application) E051 of 2024) [2024] KECA 859 (KLR)", Case Analysis (2024). Civil Appeal No. E126 of 2024 (application dated 9th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/859/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.