County Assembly of Tana River & 4 others v Nkaduda
The bottom line
#Kenya's Court of Appeal blocked the ousted Tana River Assembly Speaker from resuming office, but refused to pause the underlying employment case.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The grounds - that the trial court made final and definitive findings on the impeachment at an interlocutory stage and that the conservatory orders were erroneous - are arguable, not frivolous.
The court perused the Memorandum of Appeal and found the grounds non-frivolous. Whether they would ultimately merit was a matter for the substantive appeal; at the interlocutory stage it was sufficient that the grounds were arguable, satisfying the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory
Stay of execution or of proceedings was not merited as it would render the appeal and the ELRC Petition otiose and prejudice the Respondent; however, an injunction restraining the Respondent from assuming office was merited to protect the Applicants' operations.
The court noted the impugned ruling contained no explicit reinstatement order capable of being stayed, and that a stay would render the appeal and Petition otiose. Balancing the prejudice, it found the second limb met only in respect of an injunction against the Respondent assuming office.
Effect of the ELRC conservatory orders
The interpretation and effect of the conservatory orders restraining implementation of the impeachment resolution is a matter for determination in the substantive appeal.
The court observed the orders required the Applicants not to take certain positive steps and that there was no explicit reinstatement order, but deferred definitive interpretation of the orders' effect to the hearing of the substantive appeal.
Legal principles established
#- Under Rule 5(2)(b), an applicant must first satisfy an arguable appeal, then demonstrate that the appeal would be rendered nugatory absent the order sought.
- A single arguable point suffices to satisfy the arguability limb; the point need not be one that must succeed on appeal.
- Omission to annex a draft memorandum of appeal to a Rule 5(2)(b) application is not fatal where grievances are sufficiently set out on the face of the application.
Court orders
#- 1.An order of injunction restraining the Respondent from assuming office as Speaker of the County Assembly of Tana River, pending the hearing and determination of the Applicants' appeal in Malindi Civil Appeal No. E61 of 2021
- 2.The costs of the Notice of Motion dated 21st December 2021 shall abide the outcome of the appeal in Malindi Civil Appeal No. E61 of 2021
- On appeal from
- Employment and Labour Relations Court at Malindi
- Malindi ELRC Petition 6 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Assembly of Tana River & 4 others v Nkaduda", Case Analysis (2022). Civil Application E065 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/781/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.