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Court of AppealDismissedCivil Application No. 161 of 2019· [2020] KECA 431 (KLR)

Charles Barongo Nyakeri v County Government of Kisii & 4 others [2020] KECA 431 (KLR)

Court of Appeal
7 August 2020
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
960 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of execution against a dismissed case, since a dismissal creates no order to enforce.

What this practically means

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Executive summary

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This was an interlocutory application under rule 5(2)(b) of the Court of Appeal Rules in which Charles Barongo Nyakeri, formerly Secretary of the Kisii County Public Service Board, sought stay of execution of the judgment of the Employment and Labour Relations Court at Kericho (Mbaru, J.) delivered on 25th November 2019, which had dismissed his petition challenging the summary dismissal from his employment for gross misconduct. The applicant argued that his appointment and removal were governed by section 58 of the County Governments Act, 2012 and Article 251(1) of the Constitution rather than the Employment Act, and that he was not heard and could only be removed after a successful petition to the County Assembly. The respondents opposed, noting he declined to return to work even after a consent order, and that his was a non-renewable six-year contract running from 16th September 2014 to 16th September 2020. Applying the settled rule 5(2)(b) twin tests of arguability and nugatory effect, the Court held that the dismissal of the applicant's claim produced a negative decree incapable of execution, so stay of execution was not available. It further held that the intended appeal, if successful, would not be rendered nugatory because the fixed-term contract would have expired on 16th September 2020 and the remedy would be payment of easily quantifiable lost earnings. The application was dismissed with costs to the respondents. This ruling binds lower courts on the principle that a negative decree is not amenable to stay.

Key legal issues

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01

Whether stay of execution can issue on a negative decree

Holding

No. A dismissal is a negative order incapable of execution and therefore stay of execution does not lie.

Reasoning

The ELRC dismissed the applicant's petition outright; nothing was granted against him requiring execution. Following the established line of authority, including Western College of Arts & Applied Sciences v Oranga, a negative decree cannot be the subject of stay of execution, so the relief sought had no foundation.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

No. The applicant's fixed-term contract was to expire on 16th September 2020; if the appeal succeeds his remedy is payment of quantifiable lost earnings.

Reasoning

The nugatory test failed independently of arguability. Because the six-year non-renewable contract would expire on its own terms during the pendency of the appeal, monetary compensation for lost earnings is an adequate and easily quantifiable remedy, so successful appeal would not be rendered futile without a stay.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that it will be rendered nugatory unless the orders sought are granted.
  • A dismissal is a negative order that cannot be executed and is not amenable to a grant of stay of execution.

Court orders

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  1. 1.Application dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 73(2)
  • Constitution of KenyaArticle 251(1)
  • Employment Actsections 35, 41, 43
  • County Government Actsection 58
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kang’ethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
On appeal from
Employment and Labour Relations Court of Kenya at Kericho
ELRC Petition No. 10 of 2017
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, "Charles Barongo Nyakeri v County Government of Kisii & 4 others [2020] KECA 431 (KLR)", Case Analysis (2020). Civil Application No. 161 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/431/eng@2020-08-07

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