Attorney General v Magare-Gikenyi & 3 others (Civil Application E693 of 2024) [2025] KECA 684 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stay an injunction freezing the promotion of 212 state counsels, holding the promotions should wait until a court confirms they are lawful.
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 the intended appeal would be rendered nugatory if stay of the ELRC's interlocutory injunction is declined
- 3.How the public interest element bears on the grant or refusal of stay
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; the contention that 212 state counsels were condemned unheard despite not being parties is not frivolous.
Applying the Kinyanjui v Ketter principles, the court held that a single bona fide arguable ground suffices. The argument that the impugned orders affected 212 state counsels who were not parties to the proceedings without affording them a hearing engages Articles 47, 48 and 50 of the Constitution and merits full consideration at the hearing of the intended appeal.
Whether the appeal would be rendered nugatory if stay is refused
No; the affected officers have remedies before the trial court and any loss is compensable by payment of salary arrears.
The petition was amended to include the 212 affected state counsels as interested parties, so they may move the trial court to set aside the orders. Questions of an adequately secured undertaking from the respondents are for the trial court. There was no evidence the promotions had been effected before the impugned order issued; the payslips offer came too late, mid-plenary hearing.
The public interest balance in granting or refusing stay
Public interest is better served by holding the promotions until they pass constitutional and legal muster, subject to expedition of the petition.
Drawing on Kenya Hotel Properties, East African Cables and related authority that public interest overrides private interest, the court reasoned that a serious legality question over a large number of public servants' promotions justifies a temporary freeze, while loss to the beneficiaries can be compensated by backdated pay; prolonged uncertainty is, however, inimical to public interest, warranting priority hearing.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - an arguable appeal and that the appeal would be rendered nugatory if stay is denied.
- A single bona fide arguable ground suffices for arguability, and an arguable appeal need not necessarily succeed.
- In stay applications, public interest may override private individual interest and the court considers whether what is stayed is reversible or compensable in damages.
- Where promotions of large numbers of public servants are under constitutional challenge, public interest favours a temporary hold pending judicial validation, since loss can be compensated by salary arrears, and the hearing should be expedited.
Court orders
#- 1.The notice of motion dated 11th December, 2024 (as stated in the final order; described elsewhere as dated 16th December 2024) is dismissed
- 2.No order as to costs
- 3.The petition before the ELRC be heard and determined on priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Petition No. E202 of 2024
- Jurisdiction invoked
- Intended appeal to the Court of Appeal; interim relief under Rule 5(2)(b) of the Court of Appeal Rules following filing of a notice of appeal dated 11th December 2024
Relief refused
#Stay of execution of the ELRC interlocutory injunction of 11th December 2024
The appeal is arguable but will not be rendered nugatory; the affected state counsels can seek redress in the trial court, any loss can be compensated by salary arrears, and public interest favours holding the promotions pending judicial validation
Costs
No order as to costs - the notice of motion was dismissed "with no order as to costs"
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.
We dismiss the notice of motion dated 11th December, 2024 with no order as to costs. A further order we make is that the petition before the ELRC be heard and determined on priority basis.
An applicant must satisfy the court on both of the twin principles.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
public interest overrides private individual's interest.
In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
Issues in the judgment
#The judgment describes the motion as both dated 11th December 2024 and 16th December 2024
The judgment refers to 'the Data Production Act (perhaps the Data Protection Act)' - an internally acknowledged statutory misnomer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Magare-Gikenyi & 3 others (Civil Application E693 of 2024) [2025] KECA 684 (KLR)", Case Analysis (2025). Notice of motion dated 16th December 2024 (intended appeal from Nairobi ELRC Petition No. E202 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/684/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.