County Secretary of Kajiado, Francis Ole Sakude & 46 Others v Salaries & Remuneration Commission & 1 other
The bottom line
#The Court of Appeal dismissed County Secretaries' bid to block a salary downgrading, holding that money disputes can be repaid later so no injunction was needed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court had jurisdiction to entertain an application for injunction (as opposed to stay) where the order sought to be stayed was a negative dismissal order
Because the applicants sought an injunction rather than a stay, the Court treated itself as exercising original jurisdiction under Rule 5(2)(b) and considered the application on its merits.
The Court acknowledged that a negative dismissal order cannot be stayed. However, the applicants' prayers sought an injunction, and Rule 5(2)(b) is a procedural innovation permitting the Court to exercise discretion as a court of first instance to preserve the subject matter of an appeal. Accordingly, the Court addressed whether the applicants met the twin criteria for injunctive relief.
Whether the intended appeal was arguable
The first limb was satisfied; the applicants demonstrated an arguable appeal.
Examining the 12 grounds in the draft memorandum of appeal, and mindful that only one arguable ground suffices and that an arguable appeal need not succeed, the Court found without hesitation that the appeal was arguable.
Whether the appeal would be rendered nugatory if the injunction was not granted
The nugatory limb failed because the dispute concerned remuneration, which is capable of restitution if the appeal succeeds; hence no preservation order was warranted.
The applicants were in employment and the bone of contention was their terms of service, specifically remuneration according to the applicable Job Group. Such a subject matter is capable of restitution should the appeal succeed, so an injunction would serve no purpose. Both limbs must be shown, and failure on the nugatory limb is fatal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that its success would be rendered nugatory; one limb alone is insufficient.
- A negative order, such as the dismissal of a claim, is incapable of being stayed.
- In dealing with Rule 5(2)(b) applications the Court exercises discretion as a court of first instance, empowering it to preserve the subject matter of the appeal.
- The term 'nugatory' bears a broad meaning beyond worthless or futile.
Court orders
#- 1.The applicants' application for injunction pending appeal was dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 136 of 2016
- 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, "County Secretary of Kajiado, Francis Ole Sakude & 46 Others v Salaries & Remuneration Commission & 1 other", Case Analysis (2021). Civil Appeal (Application) No. 230 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/817/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.