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Court of AppealPartially AllowedCivil Application Nai. (to be read with Petition No. 33 of 2018 consolidated with Petition No. 42 of 2018)· [2021] KECA 392 (KLR)

The Public Service Commission & 72 Others & 72 Others v Okiya Omtatah & 4 Others & 4 Others

Court of Appeal
23 July 2021
RNR. N. NambuyeWKW. KaranjaAMA. K. Murgor
3,086 words in judgment
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The bottom line

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Kenya's Court of Appeal kept interim orders blocking parts of a High Court ruling on government posts in place while the Attorney General's appeal is heard.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal, Nairobi, on a Notice of Motion dated 29th April 2021 by the Attorney General and Paul Kihara Kariuki seeking a stay of the High Court judgment of A. C. Mrima, J. delivered on 20th April 2021 in Petition No. 33 of 2018 consolidated with Petition No. 42 of 2018, pending an intended appeal. The High Court had declared the office of Chief Administrative Secretary unconstitutional, held that Cabinet Secretaries serving into a second presidential term require fresh National Assembly approval, and that Principal Secretaries must undergo PSC recruitment and parliamentary approval, but had suspended the effect of those orders pending the containment of the Covid-19 pandemic, with each party bearing its own costs. The applicants invoked Rule 5(2)(b), relying on the twin tests of arguability and nugatory effect, and relied on public interest and the disruption of government operations. The respondents conceded some grounds were arguable but argued the application was futile given the inbuilt stay. The Court applied Stanley Kangethe Kinyanjui v Tony Ketter, found the ten grounds of appeal arguable, and held that although there was an inbuilt stay, public interest justified affirming the interim orders granted on 15th June 2021 in terms of prayers 2 and 3 of the application. It ordered costs of the application to abide the outcome of the intended appeal. This is an interlocutory ruling; it does not disturb the decision below, which awaits the full appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft memorandum of appeal containing ten grounds raised arguable grounds

Reasoning

Applying the Kinyanjui v Ketter principles, the Court held that arguability does not require prospects of success, only that the grounds are not frivolous and raise bona fide issues. On reviewing the draft memorandum attacking the declarations on CAS, Cabinet Secretaries' re-approval and Principal Secretaries' recruitment, the Court was satisfied the grounds were arguable.

p. 6
02

Whether the appeal would be rendered nugatory absent a stay

Holding

Although the trial court had granted an inbuilt stay, public interest justified affirming the interim orders

Reasoning

The nugatory test asks whether what is to be stayed is reversible or whether damages would compensate. The Court noted the trial court's own suspension of orders (b), (c) and (d) pending the containment of Covid-19, but found that the public interest underpinning the intended appeal required the interim orders issued on 15th June 2021 to be affirmed pending the appeal.

p. 6

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that it will be rendered nugatory if the stay is not granted
  • An arguable appeal need not succeed; it suffices that it is not frivolous and raises a bona fide issue, and a single bona fide arguable ground suffices

Court orders

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  1. 1.Interim orders in terms of prayers 2 and 3 of the application issued on 15th June 2021 are affirmed pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal
On appeal from
High Court of Kenya, Nairobi, Constitutional and Human Rights Division
Petition No. 33 of 2018 consolidated with Petition No. 42 of 2018
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 47 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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Later judgments citing this (3)

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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, "The Public Service Commission & 72 Others & 72 Others v Okiya Omtatah & 4 Others & 4 Others", Case Analysis (2021). Civil Application Nai. (to be read with Petition No. 33 of 2018 consolidated with Petition No. 42 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/392/eng@2021-07-23

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