The County Government Secretary/chief Executive Officer Homabay County Government & 1 other v Lilian Purity Nyajowi & 6 others
The bottom line
#The Court of Appeal refused to pause Homa Bay County's employment case because the county sought the wrong remedy and the disputed salaries could be recovered.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the twin test for stay under Rule 5(2)(b)
The application failed: the draft memorandum raised doubt as to arguability, and the salary arrears ordered are recoverable should the appeal succeed, so no nugatory-ness was shown.
The court applied the twin principles from Republic v Kenya Anti-Corruption Commission: the applicant must show an arguable appeal and that success would be rendered nugatory absent the stay. It doubted arguability from the draft memorandum. On nugatory-ness, the claim was still pending before the ELRC; staying proceedings would prevent the court below from determining the validity of the contracts, and the salary arrears for roughly one month were recoverable. The applicants had also not sought a stay of the payment order itself, only of the proceedings.
Whether a stay of proceedings was an appropriate remedy where the applicants were aggrieved by a payment order, not the proceedings
No: the applicants' grievance was with the order for payment of arrears, which they never sought to stay, and staying the proceedings would not address that grievance.
The court observed that the applicants seemed aggrieved only by the order of payment of salary arrears from 14th December 2018 to 9th January 2019. Yet their notice of motion sought only a stay of the ELRC proceedings, with no prayer to stay the payment order. Staying the main suit would leave the court below unable to determine whether the impugned contracts were valid, defeating the applicants' own position and providing no meaningful relief.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory if the stay is not granted; the discretion is unfettered but must be exercised judicially.
- An amount payable under an order is not nugatory-destroying where it can be recovered from the recipients if the appeal later succeeds.
Court orders
#- 1.The application dated 15th November 2019 seeking stay of proceedings is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Employment and Labour Relations Court at Kisumu
- ELRC Cause No. 36 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The County Government Secretary/chief Executive Officer Homabay County Government & 1 other v Lilian Purity Nyajowi & 6 others", Case Analysis (2020). Kisumu Civil Application No. 260 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/67/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.