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Court of AppealDismissedCivil Application No. 42 of 2018 (UR 24 of 2018)

Olango Onudi v Samuel Okuro & 7 others [2019] KECA 974 (KLR)

Court of Appeal of Kenya
24 January 2019
1,859 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to suspend an employment ruling against Kisumu County because winning an appeal later could easily undo the harm.

What this practically means

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Executive summary

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The applicant, the acting county secretary of Kisumu County, sought a stay of execution of a judgment of the Employment and Labour Relations Court at Kisumu (Nduma, J.) dated 12th April 2018, which declared that his actions in suspending eight chief officers of the County Government of Kisumu and issuing them notices to show cause were ultra vires the County Government Act No. 17 of 2012, unlawful, null and void ab initio, and directed that the chief officers continue to hold office without loss of remuneration. The applicant filed a notice of appeal and moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, contending the appeal was arguable on whether the County Secretary, as head of the county public service, could suspend chief officers pending investigations, and that without a stay the appeal would be rendered nugatory because the respondents, as accounting officers back at work, could interfere with documents and witnesses in ongoing investigations. The respondents opposed, arguing the application was overtaken by events since two respondents' contracts had ended and the rest had been redeployed, that declaratory orders could not be stayed, and that the parties had reconciled. Applying the settled twin test that an applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory without a stay, the Court found one arguable issue sufficed and existed here, but held the nugatory limb failed: the respondents could no longer access documents or witnesses, and the lifted suspension letters could easily be restored if the appeal succeeded. Both conditions being cumulative, the application failed. Costs were awarded in the appeal, with priority hearing if the appeal was filed.

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 and not frivolous
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Threshold conditions for stay of execution pending appeal under Rule 5(2)(b)

Holding

The Court must be satisfied both that the applicant has an arguable appeal that is not frivolous, and that the appeal would be rendered nugatory absent a stay; both conditions must coexist

Reasoning

The Court restated the long-established twin test for Rule 5(2)(b) applications, citing Githunguri v Jimba Credit Corporation, J. K. Industries v Kenya Commercial Bank and Reliance Bank v Norlake Investments. The discretion is exercised case by case, and satisfaction of one limb alone is insufficient.

p. 2
02

Arguability of the intended appeal

Holding

A single arguable issue suffices; the applicant's draft memorandum raised an arguable issue concerning the powers of the County Secretary under the County Government Act

Reasoning

The Court held that at the stay stage it is not for it to examine the merits of the grounds. It is enough that the grounds raise issues requiring analysis and determination, and in this regard one issue is sufficient. The question whether the County Secretary may suspend Chief Officers pending investigations was arguable.

p. 2
03

Nugatory aspect - whether the appeal would be rendered worthless without a stay

Holding

The applicant failed to establish nugatory impact: the respondents no longer had access to documents and witnesses, and the suspension letters could easily be restored if the appeal succeeded

Reasoning

The undisturbed facts showed two respondents had left employment and the remaining six had been transferred, so the alleged interference with investigations could not occur. Further, reinstatement orders were reversible since the suspension letters could be restored on success of the appeal. The second limb therefore failed, dooming the application.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguable appeal test and the nugatory test; both conditions must be met before stay of execution pending appeal is granted
  • Whether an appeal would be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages would reasonably compensate the aggrieved party

Court orders

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  1. 1.Application for stay of execution pending appeal dismissed
  2. 2.Costs of the application shall be costs in the appeal
  3. 3.If the appeal is filed, hearing date to be given on priority basis

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 of Kenya at Kisumu
ELRC Petition No. 5 of 2018
Jurisdiction invoked
Rule 1(2); Rule 5(2)(b) & Rule 41 of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Order of stay of execution of the ELRC judgment and orders of 12th April 2018 pending appeal

The applicant satisfied the arguability requirement but failed to demonstrate that the appeal would be rendered nugatory, and both requirements must be met

p. 3

Costs

The costs of this application shall be costs in the appeal.

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.

It should be noted that both conditions must be satisfied.
p. 2Twin test for stay pending appeal under Rule 5(2)(b)
Whether or not an appeal would be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 3Meaning of the nugatory test
It is enough that the grounds raise issues that require analysis and determination by the Court, and in this regard one issue is sufficient.
p. 2Arguability threshold - one arguable issue suffices
The costs of this application shall be costs in the appeal. If the appeal is filed, hearing date to be given on priority basis.
p. 3Final orders on costs and priority listing

Issues in the judgment

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minor

The ruling refers to the applicant's main prayer as seeking to stay orders made on 4th August, 2018, whereas the application and the judgment throughout concern orders of 12th April, 2018

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, "Olango Onudi v Samuel Okuro & 7 others [2019] KECA 974 (KLR)", Case Analysis (2019). Civil Application No. 42 of 2018 (UR 24 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/974/eng@2019-01-24

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