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Court of AppealAllowedCivil Appeal (Application) No. 107 of 2020

Cabinet Secretary, Ministry of Health & 2 others v Hezekiah Chepkwony [2020] KECA 163 (KLR)

Court of Appeal
20 November 2020
648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a case that could send Ministry of Health officials to civil jail, confirming jail threats justify staying an appeal's subject matter.

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 (Nambuye, Okwengu and J. Mohammed, JJ.A.) on a notice of motion dated 16th July 2020 brought under rule 5(2)(b) of the Court of Appeal Rules by the Cabinet Secretary and Principal Secretary, Ministry of Health, and the Attorney General. They sought a stay of execution of the ruling and orders of the Employment and Labour Relations Court (Onesmus Makau, J.) delivered on 9th July 2020 in Nairobi ELRC Petition No. 124 of 2019, together with a stay of further proceedings in that petition, pending the hearing and determination of an intended appeal. The respondent, Dr. Hezekiah Chepkwony, opposed the application through a replying affidavit and written submissions. The court adopted the twin principles for rule 5(2)(b) applications as summarised in Stanley Kangethe v Tony Ketter & Others [2013] eKLR. On the first prerequisite, it was satisfied from the Memorandum of Appeal that the intended appeal was arguable, even if it might not ultimately succeed. On the second prerequisite, it found the appeal would be rendered nugatory because the threatened action against the applicants was civil jail for alleged contempt of court orders, which once executed is irreversible. Allowing the application in prayers (b) and (c), the court stayed execution of the ELRC decision and stayed further proceedings in the petition pending the appeal, with costs of the application to abide the outcome of the appeal. This is an interlocutory ruling, not a determination of the appeal itself; the underlying ELRC decision was not disturbed.

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 appeal would be rendered nugatory if stay is not granted, given the threatened civil jail for alleged contempt

Key legal issues

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01

Arguability of the intended appeal

Holding

The court was satisfied, on the Memorandum of Appeal, that the appeal pending is arguable though it may not ultimately succeed.

Reasoning

The court adopted the principles in Stanley Kangethe v Tony Ketter & Others [2013] eKLR governing rule 5(2)(b) applications. Applying the first prerequisite to the Memorandum of Appeal contained in the record, it found the appeal arguable. It is enough that the appeal is arguable; it need not be shown that it will ultimately succeed.

p. 2
02

Nugatory value of the appeal

Holding

The second prerequisite was satisfied because the action threatened against the applicants was civil jail for alleged contempt, which once executed is irreversible.

Reasoning

The court applied the second limb of the twin principles and focused on the consequence of execution. Because the respondents threatened to committal the applicants to civil jail for alleged contempt of the ELRC orders, and such punishment, once executed, cannot be undone, the appeal would be rendered nugatory if stay were denied.

p. 2

Legal principles established

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  • To obtain stay under rule 5(2)(b), an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted; civil jail, once executed, is irreversible and satisfies the nugatory prong.

Court orders

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  1. 1.The application dated 16th July 2020 is allowed as prayed for in prayers (b) and (c) of the application, namely stay of execution of the ELRC ruling and orders of 9th July 2020 and stay of further proceedings in Nairobi ELRC Petition No. 124 of 2019 pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the 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 of Kenya
Nairobi ELRC Petition No. 124 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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 are satisfied that the appeal pending is arguable notwithstanding that it may not ultimately succeed
p. 2Arguability threshold under rule 5(2)(b)
action threatened against the Applicants is Civil Jail for alleged contempt of Court orders which in our view once executed is irreversible
p. 2Nugatory-appeal test - irreversibility of civil jail
The application dated 16th July, 2020 is allowed as prayed for in prayers (b) and (c) of the application.
p. 2Final orders - stay of execution and stay of proceedings granted
Costs of the application to abide the outcome of the Appeal.
p. 2Costs order

Issues in the judgment

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minor

The coram heading lists the applicants as three parties but the operative recital refers to 'the 1st and 2nd respondents Replying Affidavit' while only one respondent (Dr. Hezekiah Chepkwony) is named in the cause title, and the reference to the underlying petition names 'Dr. Hezekiah Chepkwony & 2 Others' versus the applicants; the identity of the 2nd respondent is unclear on the face of the ruling.

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, "Cabinet Secretary, Ministry of Health & 2 others v Hezekiah Chepkwony [2020] KECA 163 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 107 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/163/eng@2020-11-20

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