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Court of AppealAllowedNot stated in the judgment (interlocutory application in a civil appeal)· [2019] KECA 46 (KLR)

Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Application 299 of 2019) [2019] KECA 46 (KLR)

Court of Appeal of Kenya
18 October 2019
Martha Karambu KoomeM. K. KoomeHOHannah OkwenguSKS. ole Kantai
2,155 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a ruling that reinstated a suspended magistrate, showing one arguable appeal point is enough to get a stay.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by the Chief Justice and the Judicial Service Commission seeking a stay of execution of a judgment of the Employment and Labour Relations Court (Ongaya, J., August 30, 2019) in Nairobi ELRC Petition No 100 of 2019. The trial court had quashed the Chief Justice's letter of June 13, 2019 suspending the respondent, a Principal Magistrate, declared the suspension unconstitutional for contravening articles 41, 47(1) and 236 of the Constitution, and ordered reinstatement with full salary, benefits and costs. The applicants argued the intended appeal was arguable because the Third Schedule to the Judicial Service Act delegates to the Chief Justice the power to suspend judicial officers, and that reinstatement would render the appeal nugatory by exposing the respondent's judicial pronouncements to challenge and undermining public confidence. The respondent conceded some arguable points but maintained the appeal would not be rendered nugatory, relying on Article 160 protection of judicial decisions and his own financial standing. The court, comprising Koome, Okwengu and ole Kantai, JJA, applied the settled twin principles from Ishmael Kagunyi Thande v Housing Finance Company Limited, found one arguable point suffices, and held the nugatory limb satisfied since the respondent would be reinstated before the disciplinary issues were determined. It allowed the application, granting a stay of the entire judgment and consequential orders pending appeal, directing that the respondent remain a judicial officer under suspension entitled to half salary, consistent with the parties' consent of June 19, 2019. Costs of the application were to abide the outcome of the appeal. This is an interlocutory decision; the substantive appeal remains to be determined.

Key legal issues

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01

Principles governing stay of execution under rule 5(2)(b)

Holding

The twin principles - arguable appeal and nugatory outcome - must both be satisfied; the court applied the restated principles from Ishmael Kagunyi Thande v Housing Finance Company Limited.

Reasoning

The court restated the settled principles governing rule 5(2)(b) applications from Ishmael Kagunyi Thande v Housing Finance Company Limited: the applicant must show the appeal is arguable and that its success would be rendered nugatory absent stay. The court found the applicant had met both limbs and granted the stay sought.

p. 4
02

Whether the intended appeal was arguable

Holding

Arguable points existed, notably whether the trial judge misinterpreted the disciplinary process for judicial officers under Part IV of the JSC Act and related Regulations and Manuals; one arguable point suffices.

Reasoning

The court reviewed the draft grounds, submissions and authorities and found arguable points demonstrated, including whether the judge misinterpreted the disciplinary process under Part IV of the JSC Act. Even the respondent's counsel conceded arguable points. The court reiterated that only one arguable point need be established.

p. 4
03

Whether the appeal would be rendered nugatory if stay were not granted

Holding

The nugatory limb was satisfied because the respondent would be reinstated and exercising judicial power before the disciplinary issues were determined, and his judicial pronouncements could be questioned if the appeal succeeded.

Reasoning

The court accepted that absent stay the applicants would have to reinstate the respondent before the disciplinary issues were determined on merit. Because the respondent's position involves the exercise of judicial power, his decisions during the interim could be called into question should the appeal succeed, satisfying the nugatory-principle limb.

p. 4

Legal principles established

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  • An applicant for stay of execution under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory without stay; establishing a single arguable point suffices.
  • An arguable appeal need not necessarily succeed; it is one with merits capable of being argued fully before the court.

Court orders

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  1. 1.Stay of execution of the entire judgment delivered on August 30, 2019 by Ongaya, J. in Nairobi ELRC Petition No 100 of 2019 and any consequential orders, pending the hearing and determination of the applicants' intended appeal
  2. 2.The respondent to remain a judicial officer under suspension pending the hearing and determination of the appeal
  3. 3.The respondent to be entitled to half salary pending the hearing and determination of the appeal
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 236
  • Constitution of Kenya, 2010Article 160
  • Judicial Service Act No 1 of 2011Third Schedule, Part IV, Paragraphs 17(3) and 25(1)
  • Judicial Service Commission Act No 11 of 2011Third Schedule
  • Employment ActPart IV
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Judicial Service Commission v Maxwell Miyawa & 7 others [2018] eKLR
    [2018] eKLR
  • Ishmael Kagunyi Thande v Housing Finance Company Limited - Civil Application No. 156 of 2006 (ur)
    Civil Application No. 156 of 2006 (ur)
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Petition No 100 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

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, "Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Application 299 of 2019) [2019] KECA 46 (KLR)", Case Analysis (2019). Not stated in the judgment (interlocutory application in a civil appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/46/eng@2019-10-18

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