Athi Water Works Development Agency & 3 others v Gikenyi B & 77 others; Moi Teaching & Referral Board & 60 others (Interested Parties) (Civil Appeal (Application) E067 of 2024 & Civil Application E068 of 2024 (Consolidated)) [2024] KECA 1512 (KLR)
The bottom line
#Kenya's Court of Appeal paused a High Court case challenging two state agency CEOs' appointments, ruling the High Court may lack jurisdiction over employment disputes.
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 appeals are arguable and not frivolous
- 2.Whether the intended appeals will be rendered nugatory if stay of execution/proceedings and stay of the conservatory orders are not granted
Key legal issues
#Whether the intended appeals raise arguable grounds under rule 5(2)(b)
The intended appeals are arguable because they raise the question of the jurisdiction of the High Court over the petition and the principles governing conservatory orders.
The Court reviewed the impugned ruling and the draft memorandum of appeal. The gist of the intended appeal concerned the High Court's jurisdiction and whether the impugned ruling complied with principles for conservatory orders. The Court found the jurisdictional question arguable and deserving of full interrogation, while stressing that arguability does not predict success, which lies with the bench hearing the substantive appeal.
Whether the intended appeals would be rendered nugatory absent stay
Yes. If the High Court delivered judgment scheduled for 19th November 2024, the intended appeals would become an academic exercise, especially as a court acting without jurisdiction acts in futility.
The intended appeal challenges the High Court's jurisdiction. A judgment delivered before that question is determined would render the appeals worthless; although damages might compensate, the applicants would need fresh litigation to the detriment of the public purse. The Court invoked the principle that jurisdiction is everything, and held that despite the general rule that stay of proceedings is a last resort, the circumstances here warranted it.
Whether the Court can issue stay against, or vacate, conservatory orders
Yes, where appropriate, following prior decisions of the Court.
The respondents contended that the Court could not issue stay against conservatory orders. The Court rejected this, relying on Cabinet Secretary for the National Treasury and Planning v Okoiti and Cabinet Secretary Ministry of Health v Aura, holding that it can vacate conservatory orders where appropriate, and noted the applicants had sought setting aside of the 21st May 2024 orders in the proceedings leading to the impugned ruling.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must be established.
- The Court of Appeal can, where appropriate, vacate or stay conservatory orders issued by the High Court.
- It is not enough for an applicant to assert that an appeal will be rendered nugatory; it must be demonstrated that success of the intended appeal would be worthless to the applicant, considering reversibility and compensability by damages.
Court orders
#- 1.Applications E067 of 2024 and E068 of 2024 allowed to the extent that an order is issued staying the conservatory orders issued on 21st May 2024 in Nakuru HCCP No. E011 of 2024
- 2.Stay of further proceedings in Nakuru High Court Constitutional Petition No. E011 of 2024 pending the hearing and determination of the applicants' intended appeals
- 3.Costs of the applications to abide the outcome of the intended appeals
- 4.Direction that the appeals be heard expeditiously
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nakuru
- Nakuru High Court Constitutional Petition No. E011 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Application No. E068 of 2024
Relief refused
#Setting aside of the conservatory orders outright
The Court instead stayed the conservatory orders rather than vacating them, limiting relief to the extent necessary
Costs
The costs of the applications shall abide the outcome of the intended appeals.
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.
Accordingly, applications E067 of 2024 and E068 of 2024 are hereby allowed to the extent that an order is hereby issued staying the conservatory orders and further proceedings in Nakuru High Court Constitutional Petition No. E011 of 2024 pending the hearing and determination of the applicants’ intended appeals.
The costs of the applications shall abide the outcome of the intended appeals. Further, we direct that the appeals be heard expeditiously.
it is not enough for an applicant to state that the appeal will be rendered nugatory. It must be demonstrated that were the intended appeal to be successful, it will be worthless to the applicant.
jurisdiction is everything and without jurisdiction a court has no mandate to take one further step
an order staying proceedings should be a weapon of last resort
Issues in the judgment
#The judge's name appears inconsistently spelled in the judgment as both 'Muhochi' and 'Mohochi'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athi Water Works Development Agency & 3 others v Gikenyi B & 77 others; Moi Teaching & Referral Board & 60 others (Interested Parties) (Civil Appeal (Application) E067 of 2024 & Civil Application E068 of 2024 (Consolidated)) [2024] KECA 1512 (KLR)", Case Analysis (2024). Application Nos. E067 of 2024 and E068 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1512/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.