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Court of AppealAllowedCivil Application No. 31 of 2019

Sister Sarah Adipo v Teachers Service Commission [2019] KECA 619 (KLR)

Court of Appeal
19 June 2019
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal blocked a teacher's interdiction pending her appeal, confirming that reputation damage can be an irreparable injury worth protecting.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Makhandia, Kiage and Otieno-Odek, JJA) on a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending an intended appeal. The applicant, a teacher and Principal of Ahero Girls Secondary School, was interdicted by the Teachers Service Commission by letter dated 6th October 2016 on grounds including insubordination, infamous conduct and forgery/corrupt deals. The Employment and Labour Relations Court at Kisumu (Nderi, J.) dismissed her claim for a permanent injunction on 14th March 2019, holding that a disciplinary process had commenced and she had not proved unfair treatment. Rather than seek a stay of that negative order, the applicant sought an injunction restraining her interdiction pending the intended appeal. Applying the settled Rule 5(2)(b) tests - an arguable appeal and nugatory-ness, with public interest as a further consideration from the Munya case - the Court found the challenge to the legality and procedural fairness of the interdiction letter arguable. It held that the appeal would be rendered nugatory without the injunction because the fraud and forgery allegations, if later found unjustified, would inflict reputational and livelihood damage that money cannot easily remedy. It distinguished Mombasa Seaport Duty Free, relied on by the respondent, since no Rule 5(2)(b) injunction had been sought there. The Court granted the injunction restraining the interdiction pending the intended appeal, conditioned on the applicant filing the record of appeal within 45 days, failing which the injunction lapses, directed priority listing, and ordered that costs of the application abide the appeal. The ruling does not disturb the decision of the trial court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal will be rendered nugatory if the injunction sought is not granted

Key legal issues

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01

Whether the intended appeal against the dismissal of the applicant's claim was arguable

Holding

The contention that the letter of interdiction was issued unlawfully, unprocedurally and unfairly was an arguable point, and the respondent's averment on irreparable loss was also arguable.

Reasoning

The court applied the settled Rule 5(2)(b) test requiring an arguable appeal that need not necessarily succeed but must not be frivolous or idle. The applicant's challenge to the legality, procedural fairness and propriety of the interdiction letter dated 6th October 2016, and the dispute over irreparable loss, were held to raise arguable points sufficient to satisfy the first limb of the test without making definitive findings.

p. 3
02

Whether the intended appeal would be rendered nugatory if the injunction restraining interdiction was not granted

Holding

The intended appeal would be rendered nugatory if the injunction was not granted, given the serious allegations of fraud and forgery and the difficulty of repairing a damaged reputation and lost livelihood.

Reasoning

The court noted that no amount of money can compensate a person for loss of reputation following a false statement. The interdiction letter raised serious allegations of fraud and forgery which, if proven, would damage the applicant's integrity and reputation. Interdiction without pay would cause hardship and affect her livelihood. If the intended appeal succeeded, the damage to reputation and livelihood would be difficult to repair and reclaim, satisfying the nugatory-ness limb.

p. 3
03

Whether the Mombasa Seaport Duty Free decision cited by the respondent barred the relief sought

Holding

The Mombasa Seaport case was distinguishable because in that matter there was no application for an injunction under Rule 5(2)(b).

Reasoning

The respondent relied on Mombasa Seaport Duty Free Limited v Kenya Ports Authority for the proposition that granting an injunction over a dismissed cause of action revives it at an interim stage. The court distinguished it: there the order sought was neither a stay of execution, stay of proceedings nor an injunction envisaged by Rule 5(2)(b), whereas the present application squarely sought an injunction as envisaged under that rule.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate an arguable appeal that is not frivolous and that the appeal or intended appeal will be rendered nugatory unless the order sought is granted; a third consideration is the public interest.
  • In dealing with Rule 5(2)(b) the Court exercises original and discretionary jurisdiction and does not make definitive or final findings of fact or law at that stage.
  • The term 'nugatory' means not only worthless, futile or invalid but also trifling, and must be considered within the circumstances of each particular case.

Court orders

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  1. 1.An injunction restraining the respondent by itself, its servants and or agents or any other person acting under its authority from effecting the Letter of Interdiction dated 6th October 2016 pending the hearing and determination of the applicant's intended appeal against the judgment of the Employment and Labour Relations Court delivered on 14th March 2019 in ELRC Cause No. 306 of 2016
  2. 2.The applicant to file and serve the record of appeal within 45 days from the date of the ruling, failing which the injunction order shall automatically lapse
  3. 3.The Registry directed to fast track and on priority basis the hearing of the intended appeal
  4. 4.Costs of the application to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Kisumu
ELC Cause No. 306 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010, derived from Article 164(3) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We hereby grant an injunction restraining the respondent by itself, its servants and or agents or any other person acting under its authority from effecting the Letter of Interdiction dated 6 th October 2016 pending the hearing and determination of the applicant's intended appeal
p. 4final orders - injunction granted
the applicant is to file and serve the record of appeal within 45 days from the date hereof. Failure to do so the injunction order issued herein shall automatically lapse.
p. 4final orders - condition and lapse of injunction
The costs of the instant application shall abide by the outcome of the intended appeal.
p. 4final orders - costs
We are satisfied that the intended appeal will be rendered nugatory if the injunction sought is not granted.
p. 3nugatory-ness test
indeed, it must be understood that no amount of money can compensate a person for loss of reputation following a false statement.
p. 3irreparable loss and reputation
It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal
p. 3preservation pending appeal

Issues in the judgment

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minor

The respondent's cited case appears as 'Mombasa Seaport Free Limited' in one passage and 'Mombasa Seaport Duty Free Limited' in another; the judgment itself uses both renderings.

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, "Sister Sarah Adipo v Teachers Service Commission [2019] KECA 619 (KLR)", Case Analysis (2019). Civil Application No. 31 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/619/eng@2019-06-19

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