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ELRCDismissedNotice of Motion dated 24th January 2014, arising from Petition No. 7 of 2013 series (Industrial Court, Nyeri)

Mundia Njeru Geteria v Embu County Government & 4 others [2014] KEELRC 894 (KLR)

Industrial Court of Kenya
27 March 2014
5,104 words in judgment
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The bottom line

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Kenya's Industrial Court refused to pause its ruling that Embu County unlawfully removed a public service board chair, because the county could still legally remove him the right way.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th January 2014 under section 4(2) of the Industrial Court Act and Order 42(6) of the Civil Procedure Rules, the County Government of Embu sought a stay of the Industrial Court's judgment of 19th December 2013, which had declared the removal of Juma Njiru as Chair of the Embu County Public Service Board null and void for contravening article 251(1) of the Constitution, quashed the resolutions rescinding his appointment by certiorari, and restrained his removal otherwise than in accordance with article 251(1). The respondent opposed, arguing the application was brought under the wrong procedural rules (the Mutunga Rules under Legal Notice No. 117 of 2013 should apply), that no appeal had been properly filed and served, that certiorari and injunction orders could only be set aside by the Court of Appeal, and that no substantial loss was demonstrated. The Court (Abuodha Nelson J) held that Order 42(6) was improperly invoked and the Mutunga Rules govern constitutional petitions, but excused the misstep under article 159(2)(d) since no prejudice was occasioned. It found the notice of appeal was filed and served and that delay occasioned by the Court's own error in recording the judgment date could not be visited on the applicant. Applying the twin tests - arguability plus the nugatory-aspect, with the Butt test of special circumstances in doubt - the Court found the appeal arguable but held the judgment did not shackle the applicants, who could lawfully remove the respondent through a constitutionally compliant process. The stay was refused. The Court also declined to declare a conflict between article 251 of the Constitution and section 58 of the County Government Act, leaving that question to the appellate court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What are the applicable principles in an application for stay pending appeal and has the applicant met the threshold to merit grant of a stay order pending appeal?
  2. 2.Whether the application invoked the correct procedural provisions of the law, hence properly before the Court, or ought to have been brought under the 'Mutunga Rules'
  3. 3.Whether there is a conflict between section 58 of the County Government Act and article 251 of the Constitution as regards the procedure for removal of Chairs of the County Public Service Boards

Key legal issues

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01

Whether Order 42(6) of the Civil Procedure Rules or the Mutunga Rules governed the stay application

Holding

Order 42(6) was improperly invoked; the Mutunga Rules apply to constitutional petitions, though the misstep was excused under article 159(2)(d)

Reasoning

The petition invoked fundamental rights provisions, so the rules made under Legal Notice No. 117 of 2013 apply. Rule 32 leaves the grant of stay to the Court's discretion without requiring security, unlike Order 42(6). Sections 4(2) and 12 of the Industrial Court Act establish the Court and its jurisdiction but are not rule-creating provisions. Because the respondent suffered no prejudice and the rules were newly promulgated, the Court excused the error under article 159(2)(d) and entertained the application on merit.

p. 6
02

Whether the applicant met the threshold for a stay of execution pending appeal

Holding

No - the appeal was arguable but the applicant failed to show the appeal would be rendered nugatory absent a stay

Reasoning

Applying the twin tests, arguability alone is insufficient; the applicant had to demonstrate the nugatory-aspect. The judgment merely declared the removal process unconstitutional and quashed the impugned resolutions; it did not bar the County Government from lawfully removing the respondent through a constitutionally compliant process. Hence no substantial impediment justified a stay.

p. 9
03

Whether section 58 of the County Government Act conflicts with article 251 of the Constitution

Holding

No conflict was declared; the Court held it had adequately addressed the issue and must be cautious about striking down statutory provisions

Reasoning

The Court noted its earlier judgment in the main petition had already read section 58(5) together with article 251(1) on grounds and procedure for removal of Board members. It held that ambiguity of language alone does not render a statute unconstitutional where the ambiguity can be cured by reading words in or out, and left the question for the appellate court.

p. 9

Legal principles established

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  • Stay pending appeal requires both arguability of the intended appeal and demonstration that success of the appeal would be rendered nugatory if the order is not stayed; special circumstances (the Butt test) may suffice where the court is in doubt
  • For constitutional petitions, the correct procedural rules are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules ('Mutunga Rules'), not Order 42(6) of the Civil Procedure Rules, because rule 32 does not require security as a precondition to stay
  • A procedural misstep may be excused under article 159(2)(d) where the gravity of the lapse is low and no prejudice is occasioned to the affected party
  • A delay attributable to the Court (such as an erroneous judgment date on the file) cannot be visited on the applicant

Court orders

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  1. 1.The application for stay of execution of the judgment and orders of 19th December 2013 is refused/dismissed
  2. 2.The Court declined to declare any conflict between article 251 of the Constitution and section 58 of the County Government Act, leaving the issue to the appellate court

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 4(2) of the Industrial Court Act, 2011 and Order 42(6) of the Civil Procedure Rules; article 162(2)(a) of the Constitution

Relief refused

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Stay of the judgment and orders of 19th December 2013 pending appeal

The judgment did not shackle the applicants, who remain free to undertake a lawful, constitutional removal process; the nugatory-aspect test was not demonstrated

p. 9

Declaration that section 58 of the County Government Act conflicts with article 251 of the Constitution

The Court found no conflict and must be circumspect in declaring a statute unconstitutional unless in obvious and clear cases

p. 9

Costs

No express costs order recorded 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.

an order of stay will be granted if the applicants shows not only that the intended appeal is arguable but also that the success of the intended appeal would be rendered nugatory if the judgment or order appealed from is not stayed.
p. 8twin tests for stay pending appeal
Arguability of an appeal is an unrully dog which must be circumscribed by the nugatory test since everything and anything can be arguable.
p. 9limits of the arguability test
the application will be granted where special circumstances of the case so requires.
p. 8the Butt test - special circumstances
the Court is not persuaded that the applicant has met the required threshold to warrant an order of stay from this Court. The order of stay is therefore refused.
p. 9final orders - stay refused
I must be circumspect in declaring provisions of a statute in conflict with the Constitution unless in obvious and clear cases.
p. 9caution in declaring statutes unconstitutional
This therefore was a mistake on the part of the Court and any delay occasioned in the correction thereof and its consequences cannot be visited on the applicant.
p. 7delay attributable to the court cannot prejudice the applicant

Issues in the judgment

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minor

Paragraph numbering within the ruling is inconsistent (restarts and skips) in the copy provided

minor

The applicant is described inconsistently as 'the applicant'/'applicants' and its grounds of appeal refer to itself as 'the appellant' before any appeal is determined

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, "Mundia Njeru Geteria v Embu County Government & 4 others [2014] KEELRC 894 (KLR)", Case Analysis (2014). Notice of Motion dated 24th January 2014, arising from Petition No. 7 of 2013 series (Industrial Court, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/894/eng@2014-03-27

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