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Court of AppealPartially AllowedCivil Application No. 47 of 2017· [2017] KECA 501 (KLR)

Lake Victoria North Water Services Board & another v Alfred Odongo Amombo [2017] KECA 501 (KLR)

Court of Appeal of Kenya
14 June 2017
1,771 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a CEO's reinstatement for six months but said it could not undo the other employment orders until the full appeal is heard.

What this practically means

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Executive summary

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This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules, 2010 seeking stay of execution of the whole judgment of the Employment and Labour Relations Court at Kisumu (Maureen Onyango, J.) delivered 4th May 2017 in ELR No. 16 of 2017. The trial court had declared the suspension of the respondent, the Board's Chief Executive Officer, unlawful, lifted the suspension, ordered his immediate reinstatement, and restrained further disciplinary action on the same grounds. The respondent did not oppose the application. Applying the twin Rule 5(2)(b) test, the Court found the nineteen proposed grounds of appeal arguable - particularly whether the trial court could intervene before disciplinary proceedings concluded and could determine unpleaded termination - and accepted that reinstatement would render the appeal nugatory given alleged disruption to public service delivery. The Court, however, held it had no power at that stage to reverse the lifting of the suspension or the injunction, and limited the stay to the reinstatement order for a period not exceeding six months. It directed the applicants to file the appeal within 30 days and the Deputy Registrar to list it on a priority basis, with costs of the application to be costs in the appeal. The Court expressly declined to express views on the merits of the appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The proposed grounds raised several arguable points in law and fact, including the trial court's power to intervene at the suspension stage and to determine unpleaded termination.

Reasoning

The Court compared the trial court's findings with the nineteen proposed grounds of appeal. It noted the claim concerned unlawful suspension yet the trial court made findings on termination not pleaded, and considered whether the trial court could stop disciplinary proceedings and whether it applied the statutory factors before ordering reinstatement. Without deciding merits, it found sufficient arguable points.

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02

Nugatory-impact test

Holding

Reinstatement of the respondent would render the intended appeal nugatory, given the alleged confusion, interference with service delivery to the public, and crippling of Board operations.

Reasoning

The applicants contended that executing the reinstatement order would cause confusion and anarchy, interfere with service delivery to the detriment of the public, and cripple the Board's operations. The Court accepted that these factors would render the appeal nugatory in the circumstances, satisfying the second Rule 5(2)(b) requirement.

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03

Scope of stay of a multi-part judgment

Holding

The Court may stay only the reinstatement order; it cannot at this stage reverse the order lifting suspension or the injunction, which can only be reversed after the appeal is heard on the merits.

Reasoning

The judgment had three parts: lifting of suspension, reinstatement, and an injunction restraining further disciplinary action. The Court held it lacked power at the interlocutory stage to reverse the first and third, but had jurisdiction to stay execution of the reinstatement order. The application was therefore allowed only to that extent, with a six-month cap and directions for expedited filing of the appeal.

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Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-impact thresholds before the discretion is exercised in their favour.
  • Under section 43(2) of the Employment Act, the court cannot substitute its own reasons for those of the employer in assessing valid reasons for termination, and the same principle applies to suspension.
  • On an interlocutory stay application the Court may stay execution of part of a judgment (here reinstatement) even where it cannot reverse other orders pending appeal.

Court orders

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  1. 1.Execution of the order of reinstatement of the respondent as Chief Executive of the first applicant is stayed for a period not exceeding six months pending the hearing and determination of the intended appeal
  2. 2.Applicants directed to file the appeal within 30 days from the date of the ruling
  3. 3.Deputy Registrar directed to give a hearing date on priority basis once the appeal is filed
  4. 4.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Employment ActSection 43(1)
  • Employment ActSection 43(2)
On appeal from
Employment and Labour Relations Court at Kisumu
ELR No. 16 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

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, "Lake Victoria North Water Services Board & another v Alfred Odongo Amombo [2017] KECA 501 (KLR)", Case Analysis (2017). Civil Application No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/501/eng@2017-06-14

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