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Court of AppealAllowedApplication under Rules 5(2)(b) and 41 of the Court of Appeal Rules, arising from Nairobi ELRC Petition No. E062 of 2021· [2021] KECA 120 (KLR)

Parliamentary Service Commission v Okoiti & another (Civil Application E349 of 2021) [2021] KECA 120 (KLR)

Court of Appeal of Kenya
22 October 2021
AMA. K. MurgorHOH. OmondiKLDr. K. I. Laibuta
2,287 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 the employment case against the Clerk of the National Assembly until it decides whether the employment court even had power to hear it.

What this practically means

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Executive summary

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The Applicant, the Parliamentary Service Commission, sought a stay of further proceedings in Nairobi ELRC Petition No. E062 of 2021 pending appeal, under Rules 5(2)(b) and 41 of the Court of Appeal Rules. The petition, brought by the 1st Respondent, challenges the appointment of the 2nd Respondent (the Clerk of the National Assembly) on contract after he attained the mandatory retirement age of 60, seeking declarations of invalidity, an order of quashing, an order to commence recruitment, and a permanent injunction. On 8th June 2021, Monica Mbaru, J dismissed preliminary objections by the Commission and the 2nd Respondent challenging the ELRC's jurisdiction. The Commission appealed, contending that disputes over the Clerk's appointment under Article 128(1) fall within the exclusive jurisdiction of the High Court. The 2nd Respondent supported the motion; the 1st Respondent opposed it. The Court applied the settled twin principles for Rule 5(2)(b) applications: arguability and nugatory effect. It found the jurisdictional questions raised on appeal arguable, holding that a single arguable point suffices and success need not be shown. On the second limb, relying on the definition of 'nugatory' in Reliance Bank v Norlake Investments and the reversibility/compensability test in University of Nairobi v Ricatti, the Court held that the appeal would be worthless or futile if further ELRC proceedings were not stayed, since the outcome would be irreversible and not compensable in damages. The Court allowed the motion, stayed all further proceedings in the ELRC petition pending the appeal, and ordered costs to be in the appeal. The ruling of the ELRC was not disturbed; the appeal itself awaits hearing.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable: the jurisdiction of the ELRC over disputes concerning the appointment of the Clerk of the National Assembly raised arguable points, though success was not for the Court to judge at this stage.

Reasoning

The Court identified the contest as revolving on the ELRC's jurisdiction and the constitutionality of the 2nd Respondent's retention in parliamentary service on contract past mandatory retirement age. It applied the settled principle that an applicant need only demonstrate one arguable point, not a multiplicity, and need not show that the point will succeed. Whether the appeal would succeed was a matter for the full hearing of the appeal.

p. 4
02

Nugatory aspect of the intended appeal

Holding

The appeal would be rendered nugatory if further ELRC proceedings were not stayed, since the outcome would be irreversible and not compensable in damages.

Reasoning

The Applicant and 2nd Respondent demonstrated, with reasons in the supporting affidavits, that the ELRC petition and conservatory orders would proceed before the Court could determine the jurisdictional question. Adopting the definition of 'nugatory' as including trifling, and the Ricatti test of reversibility and compensability, the Court found the outcome of further proceedings would be irreversible and damages would not compensate the aggrieved party.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • A single arguable point suffices and the applicant need not show it will succeed.
  • Nugatory means more than worthless; it also means trifling, and is assessed case by case.
  • Where further proceedings would be irreversible and uncompensable by damages, stay should issue.

Court orders

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  1. 1.All further proceedings in Nairobi ELRC Petition No. E062 of 2021 stayed pending the hearing and determination of the appeal
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 128(1)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Employment and Labour Relations ActSection 12(1) and (2)

Cases cited (11)

  • Hon. Anne Wanjiku Kibeh v Hon. Clement Kungu Waibara and IEBC
    [2020] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others
    [2014] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA p.227 at p.232
  • Attorney-General and another v Tolphin Nafula and 5 others
    [2021] eKLR
  • Attorney-General and 2 others v Okiya Omutata Okoiti and 14 others
    [2020] eKLR
  • Olive Mwihaki Mugenda and another v Okiya Omutata Okoiti and 4 others
    [2016] eKLR
  • Energy Regulatory Commission v John Sigura Otido
    [2019] eKLR
  • Stanley Kangethe Kinyanjui v Tony Keter and 5 others
    [2013] eKLR
  • University of Nairobi v Ricatti Business of East Africa
    [2020] eKLR
  • Samuel Kamau Macharia v KCB and others
    [2012] eKLR
  • Yellow Horse Inns Limited v A. A. Kawir Transporters & 4 Others
    [2014] eKLR
On appeal from
Employment and Labour Relations Court
Petition No. E062 of 2021
Jurisdiction invoked
Rules 5(2)(b) and 41 of the Court of Appeal Rules (appellate jurisdiction under the Constitution over decisions of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Parliamentary Service Commission v Okoiti & another (Civil Application E349 of 2021) [2021] KECA 120 (KLR)", Case Analysis (2021). Application under Rules 5(2)(b) and 41 of the Court of Appeal Rules, arising from Nairobi ELRC Petition No. E062 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/120/eng@2021-10-22

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