Kaudo (suing as the Clerk Homa Bay County Assembly) v Speaker Homa Bay County Assembly & 8 others (Civil Application 119 of 2020) [2021] KECA 195 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an order blocking the Homa Bay County Assembly Clerk from taking office, because you cannot 'stay' an order that merely forbids action.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable on the ground that the applicant's rights to fair administrative action under Article 47 may have been breached.
The Court applied the test in Stanley Kang'ethe Kinyanjui v Tony Ketter: an arguable appeal need not succeed, it need only not be frivolous and deserve full argument. It found a single bona fide arguable ground regarding Article 47 fair administrative action, while expressly declining to make definitive findings that would embarrass the bench hearing the main appeal.
Whether the intended appeal would be rendered nugatory absent a stay
No. The impugned ELRC order was a negative order incapable of execution and there was nothing to stay.
The learned Judge had simply ordered that the applicant should not take office until the petition was heard and determined. Drawing on the reasoning in Raphael Kakene Muloki and Raymond M. Omboga, the Court held that where there is no positive order in favour of the respondent capable of execution, there can be no stay, and the applicant would simply remain in the position he was in before coming to court.
Cumulative nature of the twin limbs under Rule 5(2)(b)
An applicant must establish both the arguability and the nugatory limbs; satisfying one alone is insufficient.
Although the Court found the appeal arguable, the failure of the nugatory limb was fatal. The Court reiterated the principles in Trust Bank Limited v Investech Bank Limited that the jurisdiction is original and discretionary, guided by the interests of justice, and both guiding principles must be considered against the facts and circumstances of each case.
Legal principles established
#- To succeed under Rule 5(2)(b) an applicant must establish both that the appeal is arguable and that it will be rendered nugatory absent stay; both limbs must be satisfied.
- A negative order, such as an order dismissing an application or an order that nothing be done, is incapable of execution and therefore incapable of being stayed.
Court orders
#- 1.The application dated 13th October, 2020 is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- Employment and Labour Relations Court, Kisumu
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaudo (suing as the Clerk Homa Bay County Assembly) v Speaker Homa Bay County Assembly & 8 others (Civil Application 119 of 2020) [2021] KECA 195 (KLR)", Case Analysis (2021). Notice of motion dated 13th October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/195/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.