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Court of AppealPartially AllowedCivil Application No. Nai. 244 of 2017 (as disclosed: Motion under Rule 5(2)(b))· [2017] KECA 54 (KLR)

Judicial Service Commission v Muriuki (Civil Application 89 of 2017) [2017] KECA 54 (KLR)

Court of Appeal of Kenya

20 December 2017

GKG.B.M. Kariuki FSF. Sichale SKS. ole Kantai

1,297 words in judgment

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The bottom line

Kenya's Court of Appeal paused enforcement of an unfair dismissal award against the Judicial Service Commission, but only if the employee's undisputed salary arrears are paid first.

What this practically means

Executive summary

The Judicial Service Commission moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act for a stay of execution of a judgment of Ongaya J of the Employment and Labour Relations Court at Nyeri delivered on 9th June 2017 in Employment and Labour Cause No. 31 of 2014. The respondent, a clerical officer dismissed for absence from duty, had succeeded before the ELRC, which declared his dismissal unfair and unlawful, ordered payment of salary and allowances from February 2012 to February 2014, partial reinstatement with a pay-back limited to twelve months' gross pay, and re-engagement or, alternatively, payment of accrued retirement benefits, with costs to the respondent. The Commission filed a Notice of Appeal and sought a stay pending appeal. Before the Court of Appeal, the applicant argued the appeal was arguable and that the respondent could not refund the decretal sum; the respondent opposed, noting the salary arrears were undisputed and that he was not impecunious. Applying the settled twin principles in Ishmael Kagunyi Thande v Hfck, the court held the grounds on justifiability of the dismissal and the reinstatement order were arguable, and that the respondent had not demonstrated capacity to repay the award. The court allowed the motion conditionally: stay of execution was granted pending the intended appeal, subject to the respondent's payment of his undisputed two years' salary within thirty days. Costs of the motion were placed in the intended appeal. The bench of Kariuki, Sichale and ole Kantai JJA delivered a single unanimous judgment.

Key legal issues

Whether the intended appeal was arguable

Holding

The court found, without making definitive findings, that grounds concerning the justifiability of the dismissal and the power to order reinstatement where the employee had indicated he did not wish to work for the employer were arguable.

Reasoning

The court applied the settled Rule 5(2)(b) threshold that an applicant need only show a single arguable ground, not that the appeal will succeed. It identified the justifiability of the dismissal and the propriety of reinstatement as an alternative order, given the respondent's stated unwillingness to work for the judiciary, as raising arguable issues suitable for determination on the full appeal.

p. 3

Whether the appeal would be rendered nugatory absent stay

Holding

The court found the nugatory test satisfied because the respondent did not demonstrate ability to repay the decretal sum if the appeal succeeded.

Reasoning

The respondent, though claiming to be a businessman, did not disclose his income and had previously complained of financial embarrassment from non-payment of salary. The applicant's contention that the respondent could not refund the award if the appeal succeeded was uncontroverted, so the court agreed the sum awarded could be irrecoverable, warranting a conditional stay.

p. 3

Legal principles established

An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory unless stay is granted.
The Rule 5(2)(b) jurisdiction is original and discretionary, guided by the two settled principles.

Court orders

1.Stay of execution and enforcement of the judgment of Ongaya J. delivered on 9th June 2017 pending the hearing and determination of the intended appeal, subject to payment of the respondent's undisputed two years salary from 6th February 2012 to 5th February 2014 within 30 days
2.Costs of the Motion to be in the intended appeal

Authorities

Legislation

Appellate Jurisdiction ActSections 3A and 3B
Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

Ishmael Kagunyi Thande v Hfck
Ca No. 156 Of 2006

On appeal from: Employment and Labour Relations Court, Nyeri; Employment and Labour Cause No. 31 of 2014 – Nyeri
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules together with Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Judicial Service Commission v Muriuki (Civil Application 89 of 2017) [2017] KECA 54 (KLR)", Case Analysis (2017). Civil Application No. Nai. 244 of 2017 (as disclosed: Motion under Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/54/eng@2017-12-20

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