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Court of AppealDismissedCivil Application No. 17 of 2020· [2021] KECA 657 (KLR)

Kenya Council of Employment and Migration Agencies v Attorney General & 3 others

Court of Appeal
23 April 2021
1,532 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an employment ruling, confirming that a stay application fails unless it shows both a real appeal and something reversible to stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Asike-Makhandia and Kantai JJ.A.) delivered on 23rd April 2021 on a Notice of Motion dated 22nd January 2020 brought by the Kenya Council of Employment and Migration Agencies under Rules 5(2)(b) and 96 of the Court of Appeal Rules, seeking a stay of execution of the ruling of O. N. Makau, J. of the Employment and Labour Relations Court dated 13th January 2020 in Nairobi ELRC Cause No. 167 of 2019, plus liberty to consolidate with a Notice of Appeal against earlier orders of B. Ongaya, J. The background was a dispute over the recruitment of the NEMA Director General; Ongaya J had directed parties to record a compromise, but before the mention before Makau J the impugned advertisement was cancelled, and Makau J marked the suit as closed as overtaken by events, with no order as to costs, being a public interest case. The applicant contended the consent of 9th January 2020 remained alive and that Makau J lacked jurisdiction to revise Ongaya J's orders. Applying the twin Rule 5(2)(b) thresholds restated in Stanley Kangethe Kinyanjui v Tony Ketter, the court found the appeal not arguable, since the record showed the advertisement had been cancelled, and that the second limb also failed because there was nothing capable of being stayed. It noted that both limbs must be satisfied to earn relief. The application was dismissed with costs to the respondents. This ruling is binding on the Environment and Labour Relations Court and subordinate courts on the Rule 5(2)(b) principles it restates.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable; the learned Judge correctly found that the advertisement underlying the intended consent had been cancelled, rendering the orders of B. Ongaya, J. overtaken by events.

Reasoning

The court applied the Stanley Kangethe Kinyanjui threshold and found nothing arguable in the applicant's contention that the consent of 9th January 2020 remained alive or that the Judge lacked jurisdiction to revise Ongaya J's orders. The record explicitly showed the advertisement was cancelled on 4th and 5th January 2020, so the Judge's conclusion was unimpeachable and the first limb failed.

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02

Whether the intended appeal would be rendered nugatory if stay was not granted

Holding

The second prerequisite also failed because, the advertisement having been cancelled, there was nothing capable of being stayed.

Reasoning

The court applied Reliance Bank Ltd v Norlake Investments Ltd: stay depends on whether the thing to be stayed is reversible or whether damages would compensate. Since the substratum of the intended consent — the advertisement — had been cancelled, there was nothing in existence capable of being stayed, and the applicant could not satisfy this limb either. Both limbs being unsatisfied, no relief under Rule 5(2)(b) was available.

p. 3

Legal principles established

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  • An arguable appeal is not one which must necessarily succeed, but one which is not frivolous; a single bona fide arguable ground suffices.
  • Both limbs of the Rule 5(2)(b) test — arguability and nugatory-ness — must be satisfied before stay relief can be granted.
  • The nugatory requirement depends on whether what is sought to be stayed is reversible, or if irreversible, whether damages would reasonably compensate the aggrieved party.

Court orders

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  1. 1.The Notice of Motion dated 22nd January 2020 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Employment and Labour Relations Court at Nairobi
Nairobi ELRC Cause No. 167 of 2019
Jurisdiction invoked
Rules 5(2)(b) and 96 of the Court of Appeal Rules, 2020; Articles 159, 160(1) and 164(3) of the Constitution of Kenya, 2010

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, "Kenya Council of Employment and Migration Agencies v Attorney General & 3 others", Case Analysis (2021). Civil Application No. 17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/657/eng@2021-04-23

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