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Court of AppealDismissedCivil Application No. 76 of 2020· [2020] KECA 179 (KLR)

County Government Workers Union & 2 others v County Government of Laikipia & another [2020] KECA 179 (KLR)

Court of Appeal
20 November 2020
William OukoW. OukoWKW. KaranjaMartha Karambu KoomeM. Koome
1,406 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stay the High Court's dismissal of the unions' judicial review because a dismissal—a negative order—cannot be stayed.

What this practically means

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Executive summary

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The unions (applicants) instituted judicial review proceedings before the ELRC at Nyeri challenging a county government restructuring exercise that would declare some positions redundant, and an accompanying advertisement of vacancies. On 28th July 2020, Nzioki wa Makau, J dismissed the judicial review as incompetent for being brought contrary to the doctrine of exhaustion, making no order as to costs given the parties' social partnership. The unions moved the Court of Appeal under Rule 5(2)(b) for stay of execution pending an intended appeal, alleging that 172 members had received termination letters and that the appeal would be rendered nugatory. The respondents opposed, contending the judgment was a negative order incapable of being stayed, that no arguable grounds were disclosed, and that affected employees had already been compensated and retained alternative recourse before the County Public Service Board and the Employment and Labour Court. Applying the settled twin tests for Rule 5(2)(b) applications - arguability and nugatory-ness - the Court (Ouko, P, Karanja and Koome, JJ.A) found that although one arguable point would suffice, the order sought to be stayed was a negative order dismissing the judicial review, incapable of execution and hence incapable of being stayed. The Court declined to pronounce on the correctness of the exhaustion doctrine, reserving it for the appeal bench. Noting that some applicants had received terminal dues and that no prejudice was demonstrated, the Court dismissed the application with no order as to costs. The ruling binds subordinate courts on the principle that negative orders cannot be stayed.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court assumed without deciding that the doctrine-of-exhaustion ground was arguable, but did not rest its decision on that limb, leaving the question for the appeal bench.

Reasoning

The Court identified the dismissal for failure to exhaust alternative dispute resolution mechanisms as the principal ground. It expressly declined to determine whether the learned Judge was right in declining jurisdiction, reserving that question for the bench seized of the appeal. Because the stay failed on the nugatory limb (negative order), the arguability analysis was not decisive.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

The order sought to be stayed was a negative order dismissing the judicial review, incapable of execution and therefore incapable of being stayed.

Reasoning

The High Court had merely dismissed the judicial review without ordering any party to do or refrain from doing anything. Following Kanwal Sarjit Singh Dhiman v. Keshavji Jivraj Shah and College of Arts and Applied Sciences v. Oranga, a negative order cannot be stayed. Some applicants had already been paid terminal dues and no prejudice was demonstrated.

p. 2

Legal principles established

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  • Negative orders are not capable of being stayed
  • An applicant under Rule 5(2)(b) must satisfy the twin limbs of arguability and nugatory-ness
  • One arguable point suffices to establish that an intended appeal is arguable

Court orders

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  1. 1.Application for stay of execution dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(a)(d) and (e)
  • Fair Administrative Actions ActSections 9(3) and 9(4)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (8)

  • Regnoil Kenya Ltd. v. Winfred Njeri Karanja
    Nairobi Civil Application No. 329 of 2018
  • William Wambugu Wahome v. Registrar of Trade Unions & Another
    (2006) eKLR
  • Mombasa Seaport Duty Free Limited v. Kenya Ports Authority
    (2006) eKLR
  • Judicial Commission of Inquiry Into The Goldenberg Affair v. Kilach
    (2003) eKLR 249
  • Ruben & Others vs Nderitu & Another
    [1989] KLR 459
  • Kenya Tea Growers Association & Another v. Kenya Planters & Agricultural Workers Union
    CA. No. Nai. 72 of 2001
  • Kanwal Sarjit Singh Dhiman v. Keshavji Jivraj Shah
    (2008) eKLR
  • College of Arts and Applied Sciences vs Oranga & Others
    [1976] KLR 63
On appeal from
High Court of Kenya at Nyeri
ELRC Judicial Review No. 1 of 2020
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, "County Government Workers Union & 2 others v County Government of Laikipia & another [2020] KECA 179 (KLR)", Case Analysis (2020). Civil Application No. 76 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/179/eng@2020-11-20

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