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Court of AppealDismissedCivil Application No. NAI. 47 of 2016· [2016] KECA 208 (KLR)

Idriss Aden Mukhtar & 2 others v County Government of Garissa & another [2016] KECA 208 (KLR)

Court of Appeal
30 September 2016
2,885 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (G.B.M. Kariuki, Sichale and ole Kantai, JJ.A.) dismissing a Notice of Motion under rules 1(2) and 5(2)(b) of the Court of Appeal Rules in which three former County Executive Committee Members of Garissa County sought injunctive relief, reinstatement and payment of dues pending an intended appeal against a ruling of Wasilwa, J. of the Employment and Labour Relations Court delivered on 27th July 2015 vacating earlier orders reinstating them. The applicants argued, relying on County Government of Nyeri v Cecilia Wangechi Ndungu and Narok County Government v Richard Bwogo Birir, that the Governor lacked authority to dismiss them at pleasure, and faulted the trial judge for setting a higher standard than Giella v Cassman Brown for a prima facie case. The respondents opposed, citing Mrao Ltd v First American Bank and Kenya Airways Ltd v Aviation and Allied Workers Union. The court restated the settled Rule 5(2)(b) principles from Republic v Kenya Anti-Corruption Commission: the applicant must demonstrate both that the appeal is arguable and that its success would be rendered nugatory; one limb alone does not suffice. The court found the intended appeal arguable, accepting that a single arguable point suffices, but held the applicants failed the nugatory limb: the lower court had already preserved the positions by restraining substantive filling, and the orders sought amounted to a mandatory injunction reinstating dismissed employees, inappropriate on such an interlocutory application. The motion was dismissed with costs abiding the intended appeal.

Key legal issues

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01

Principles governing applications under Rule 5(2)(b) of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 4
02

Whether the intended appeal was arguable

Holding

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.

Reasoning

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.

p. 5
03

Whether the intended appeal would be rendered nugatory if the orders sought were refused

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated and filed in Civil Application No. NAI. 47 of 2016 is dismissed
  2. 2.Costs of the application shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 42 Rule 6
  • County Government Act

Cases cited (11)

  • County Government of Nyeri and Another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Narok County Government and Another v Richard Bwogo Birir and Another
    [2015] eKLR
  • Giella v Cassman Brown & Co. Limited
    [1973] E.A. 358
  • Erinford Properties Ltd v Cheshire County Council
    [1974] 2 All ER 448
  • Mrao Limited v First American Bank of Kenya Limited and 2 Others
    [2003] KLR
  • Kenya Airways Limited v Aviation and Allied Workers Union Kenya and 3 Others
    [2014] eKLR
  • Republic v Kenya Anti-Corruption Commission and 2 Others
    [2009] KLR 31
  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 EA 227
  • Githunguri v Jimba Credit Corporation Ltd & Others (No. 2)
    1988 KLR 828
  • Wardpa Holdings Ltd & Others v Emmanuel Waweru Mathai & HFCK
    Civil Appeal No. 72 of 2011 [unreported]
  • Chris Munga Bichange v Richard Nyagaka Tongi & 2 Others
    [2013] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.