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Court of AppealDismissedKisumu Civil Application No. 260 of 2019· [2020] KECA 67 (KLR)

The County Government Secretary/chief Executive Officer Homabay County Government & 1 other v Lilian Purity Nyajowi & 6 others

Court of Appeal
18 December 2020
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, P, Karanja and Koome, JJ.A) dismissing a notice of motion dated 15th November 2019 brought under Rule 5(2)(b) of the Court of Appeal Rules by the County Government Secretary/CEO and the Office of the County Governor of Homa Bay County. The applicants sought a stay of further proceedings in Kisumu ELRC Cause No. 36 of 2019 pending an intended appeal against an interlocutory order of Nduma Nderi J dated 17th October 2019, directing the 1st to 6th respondents to be paid salary arrears for services rendered from 14th December 2018 to 9th January 2019, the period before their employment was halted. The respondents, employees whose fixed-term contracts ran from 2nd January 2019 to 1st January 2022, claimed their salaries stopped at the end of March 2019 and they were barred from accessing their offices. Applying the twin test in Republic v Kenya Anti-Corruption Commission & 2 others [2009] eKLR, the court held that the applicants had to demonstrate an arguable appeal and that the appeal would be rendered nugatory without the stay. The court expressed doubt as to arguability from the draft memorandum of appeal, and was not persuaded that the salary arrears were unrecoverable should the appeal succeed. Critically, the applicants had not sought to stay the payment order itself, only the proceedings, and staying the proceedings would prevent the ELRC from determining the validity of the contracts. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicants satisfied the twin test for stay under Rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 2
02

Whether a stay of proceedings was an appropriate remedy where the applicants were aggrieved by a payment order, not the proceedings

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 15th November 2019 seeking stay of proceedings is dismissed
  2. 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

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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, "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.