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Court of AppealDismissedCivil Application No. 115 of 2020· [2021] KECA 846 (KLR)

Joseph Muriithi Njeru v County Government of Kirinyaga

Court of Appeal
19 March 2021
1,752 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of execution against an order that merely dismissed your case, because there is nothing to stay.

What this practically means

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Executive summary

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The applicant, an employee of the County Government of Kirinyaga, was deployed by letter dated 3rd March 2018 from Sub-County Administrator (Kirinyaga Central) to the County Ministry of Agriculture, Livestock, Veterinary and Fisheries. He filed a succession of suits in the Employment and Labour Relations Court challenging the deployment: ELRC No. 192 of 2018 (dismissed for non-attendance), ELRC No. 24 of 2019 (dismissed as an abuse of process), and ELRC No. 4 of 2020, which Nzioki Wa Makau, J. struck out on 15th October 2020 on a preliminary objection that the matter was res judicata, holding that the principle applies even where prior suits were merely dismissed. The applicant lodged a notice of appeal and brought a motion under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution and injunctions restraining the respondent's disciplinary proceedings and the implementation of the redeployment decisions. The respondent did not respond. A bench of Koome, M'inoti and Murgor, JJ.A., sitting at Nyeri but delivering the ruling in Nairobi on 19th March 2021, applied the settled twin principles of arguability and nugatory effect. It held that the order below was a negative order striking out the petition, incapable of execution and therefore unstayable, and that the applicant had not shown the appeal would be rendered nugatory since he remained an employee of the respondent. The motion was dismissed with no order as to costs. The judgment binds lower courts on the unstayability of negative orders.

Key legal issues

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01

Whether a stay of execution can issue in respect of a negative order

Holding

No - an order that merely strikes out or dismisses a suit without requiring any party to do or refrain from anything is not capable of execution and cannot be stayed.

Reasoning

The court adopted its own precedents, including Western College and Co-operative Bank of Kenya v BIFU, holding that where a court has granted negative orders there is nothing to stay or enforce by injunction. The trial judge's order merely struck out the applicant's petition; no party was ordered to do or refrain from doing anything or to pay any sum, so there was nothing capable of execution.

p. 2
02

Whether the applicant demonstrated that the appeal would be rendered nugatory

Holding

He did not; he remains an employee of the respondent and the injunction relief was unpersuasive on the merits.

Reasoning

The court found the applicant had not shown how success in the intended appeal would be rendered nugatory since he remains employed by the respondent. It also found no evidence of wrongdoing by the respondent, which had lawfully exercised its discretion as an employer to deploy the applicant between departments, making the arguability of that ground doubtful.

p. 3

Legal principles established

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  • A negative order - one dismissing or striking out a suit without compelling any party to do or refrain from doing anything - is incapable of execution and no stay of execution may be granted in respect of it under Rule 5(2)(b).
  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
  • The principle of res judicata applies even where the earlier suit was dismissed, not only where it was determined on the merits.

Court orders

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  1. 1.The applicant's motion dated 3rd December, 2020 is dismissed
  2. 2.No order as to costs
On appeal from
Employment and Labour Relations Court at Nyeri
ELRC No. 4 of 2020
Jurisdiction invoked
Rule 5(2)(b) 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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Cite this brief

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Cite this brief

Caselaw, "Joseph Muriithi Njeru v County Government of Kirinyaga", Case Analysis (2021). Civil Application No. 115 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/846/eng@2021-03-19

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