Idriss Aden Mukhtar & 2 others v County Government of Garissa & another [2016] KECA 208 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reinstate three dismissed Garissa county officials pending appeal because they only proved one of the two required conditions.
What this practically means
#Executive summary
#Key legal issues
#Principles governing applications under Rule 5(2)(b) of the Court of Appeal Rules
The court exercises a discretion that is unfettered but must be exercised judicially; the applicant must show the appeal is arguable and that its success would be rendered nugatory if stay or injunction is refused. Both limbs must be demonstrated.
The court restated the settled principles, citing Republic v Kenya Anti-Corruption Commission and 2 Others and the lead ruling in Chris Munga Bichange v Richard Nyagaka Tongi. Arguability requires only that the appeal not be frivolous; one arguable point suffices. The two limbs are cumulative: satisfying only one does not entitle the applicant to the order sought.
Whether the intended appeal was arguable
The court found the intended appeal arguable, accepting counsel's points on misapplication of the Giella v Cassman Brown prima facie case standard and on the entitlement to immediate relief for breach of constitutional rights.
Counsel argued the trial judge laid a higher standard than Giella v Cassman Brown requires for a prima facie case and that breach of constitutional rights merits immediate quashing and reinstatement. The court agreed these were arguable points in the intended appeal, satisfying the first limb of the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory if the orders sought were refused
The applicants failed to demonstrate the nugatory aspect; the lower court had preserved the positions by restraining substantive filling, and orders compelling reinstatement would amount to a mandatory injunction inappropriate at this stage.
The lower court's ruling of 27 July 2015 had preserved the status quo by precluding the respondents from substantively filling the positions pending the petition. The applicants sought what amounted to a mandatory injunction reinstating dismissed employees. The court held such an order inappropriate on a Rule 5(2)(b) application and found the applicants had not shown the appeal would be rendered nugatory.
Legal principles established
#- On an application under Rule 5(2)(b), the applicant must satisfy both limbs - arguability and nugatory aspect - and demonstrating only one limb does not avail the applicant
- A single arguable point suffices to establish that an appeal or intended appeal is arguable
- A court hearing a Rule 5(2)(b) application will not make an order amounting to a mandatory injunction reinstating a dismissed employee pending appeal where the nugatory limb is not satisfied
Court orders
#- 1.The Notice of Motion dated and filed in Civil Application No. NAI. 47 of 2016 is dismissed
- 2.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Petition No. 46 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (with rule 1(2)) - application for injunction and orders pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngige v Samsung Electronics EA Limited (Cause E273 of 2023) [2023] KEELRC 1985 (KLR)[2023] KEELRC 1985 (KLR)27 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Idriss Aden Mukhtar & 2 others v County Government of Garissa & another [2016] KECA 208 (KLR)", Case Analysis (2016). Civil Application No. NAI. 47 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/208/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.