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Court of AppealDismissedNotice of motion dated 16th December 2024 (intended appeal from Nairobi ELRC Petition No. E202 of 2024)

Attorney General v Magare-Gikenyi & 3 others (Civil Application E693 of 2024) [2025] KECA 684 (KLR)

Court of Appeal of Kenya
11 April 2025
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Attorney General moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of an interlocutory injunction issued on 11th December 2024 by the Employment and Labour Relations Court at Nairobi (Ongaya, J.) in Nairobi ELRC Petition No. E202 of 2024. The injunction stayed implementation of promotion decisions conveyed by an internal memo dated 26th November 2024, except for two positions, pending the return date. The applicant argued the order was effectively mandatory, condemned 212 state counsels unheard contrary to Articles 47, 48 and 50 of the Constitution, went beyond the scope of the petition, and relied on illegally obtained documents. The 1st to 3rd respondents, and the Public Service Commission, opposed, arguing the orders were conservatory, the Advisory Board whose decision was stayed was not aggrieved, and public interest favoured refusal. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter - arguability and nugatory-ness - and the public-interest jurisprudence in Kenya Hotel Properties and East African Cables, the Court found the intended appeal arguable, particularly on the claim that 212 state counsels were condemned unheard. However, it held the appeal would not be rendered nugatory: the petition had been amended to include the affected officers, who may seek setting aside in the trial court, and any loss can be compensated by salary arrears. Public interest favoured holding the promotions pending judicial validation, subject to expedition. The motion was dismissed with no order as to costs, and the petition ordered heard on a priority basis. The decision below was neither affirmed nor reversed; only the stay application was resolved.

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 the intended appeal would be rendered nugatory if stay of the ELRC's interlocutory injunction is declined
  3. 3.How the public interest element bears on the grant or refusal of stay

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable; the contention that 212 state counsels were condemned unheard despite not being parties is not frivolous.

Reasoning

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.

p. 5
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

No; the affected officers have remedies before the trial court and any loss is compensable by payment of salary arrears.

Reasoning

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.

p. 5
03

The public interest balance in granting or refusing stay

Holding

Public interest is better served by holding the promotions until they pass constitutional and legal muster, subject to expedition of the petition.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.No order as to costs
  3. 3.The petition before the ELRC be heard and determined on priority basis

The bench

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

majority
majority
majority
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

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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

p. 5

Costs

No order as to costs - the notice of motion was dismissed "with no order as to costs"

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.

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.
p. 5Final orders - dismissal of stay motion and expedition
An applicant must satisfy the court on both of the twin principles.
p. 4Rule 5(2)(b) 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.
p. 4Standard of arguability
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.
p. 4Meaning of nugatory
public interest overrides private individual's interest.
p. 5Public interest in stay applications
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.
p. 4Limits of interlocutory findings

Issues in the judgment

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minor

The judgment describes the motion as both dated 11th December 2024 and 16th December 2024

minor

The judgment refers to 'the Data Production Act (perhaps the Data Protection Act)' - an internally acknowledged statutory misnomer

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, "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.