Cabinet Secretary, Ministry of Health & 2 others v Hezekiah Chepkwony [2020] KECA 163 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if stay is not granted, given the threatened civil jail for alleged contempt
Key legal issues
#Arguability of the intended appeal
The court was satisfied, on the Memorandum of Appeal, that the appeal pending is arguable though it may not ultimately succeed.
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.
Nugatory value of the appeal
The second prerequisite was satisfied because the action threatened against the applicants was civil jail for alleged contempt, which once executed is irreversible.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
action threatened against the Applicants is Civil Jail for alleged contempt of Court orders which in our view once executed is irreversible
The application dated 16th July, 2020 is allowed as prayed for in prayers (b) and (c) of the application.
Costs of the application to abide the outcome of the Appeal.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.