Masomo v County Government, Taita-Taveta & 2 others (Civil Application 295 of 2015) [2016] KECA 631 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reinstate a removed county official pending appeal, saying damages would compensate him and devolution must keep working.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because the High Court itself is of different mind on the constitutionality of section 40(3) of the County Government Act, and the question of compliance with the County Assembly Standing Orders is not an idle issue
The Court does not examine merits at this stage; it needs only a single bona fide issue. The conflicting High Court decisions on whether section 40(3) contravenes Article 50(1), and the alleged breach of Standing Order No. 3 requiring three days' notice of the Select Committee report, suffice to show bona fide issues for the appeal.
Nugatory value and public interest in conservatory orders
The intended appeal would not be rendered nugatory without conservatory orders, since the applicant would be adequately compensated by damages, and devolution interests weigh against preserving him in office
Unlike the election and county-assembly cases relied on, where expensive by-elections were imminent and public resources at stake, what is at stake here is the applicant's individual office. Given the centrality of devolution, a conservatory order would disrupt County Government organs more than it would benefit the applicant, whose loss is compensable in damages.
Legal principles established
#- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party
- On an application for conservatory orders pending appeal, the applicant need only demonstrate a single bona fide arguable issue, which need not ultimately succeed
- Whether an intended appeal will be rendered nugatory depends on the circumstances of each case; public interest may weigh against conservatory orders preserving county officials in office where damages would suffice
Court orders
#- 1.The Court declines to issue the injunction or conservatory orders sought by the applicant
- 2.The Notice of Motion dated 11th December 2015 is dismissed
- 3.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Petition No. 83 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court, with power to grant injunction or conservatory orders pending appeal under rules of this Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masomo v County Government, Taita-Taveta & 2 others (Civil Application 295 of 2015) [2016] KECA 631 (KLR)", Case Analysis (2016). Notice of Motion dated 11th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/631/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.