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Court of AppealDismissedCivil Application E081 of 2021· [2022] KECA 908 (KLR)

Laikipia County Public Service Board v Public Service Commission & another; Laikipia County Government (Interested Party)

Court of Appeal
22 July 2022
HOHANNAH OKWENGUFSF. SICHALEAMA. MBOGHOLI MSAGHA
1,703 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of execution over a dismissal order that requires nobody to do anything.

What this practically means

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Executive summary

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The Laikipia County Public Service Board moved the Court of Appeal under Rule 5(2)(b) seeking stay of execution of the Public Service Commission's decision of 12th August 2020, which set aside the summary dismissal of striking doctors and reinstated them, as adopted by the ELRC in Judicial Review No. 9 of 2019, together with the ELRC judgment of 19th July 2021 dismissing the Board's constitutional petition. The union members had been dismissed after a strike; the PSC reinstated them on appeal, and the Board, instead of appealing the adoption order, filed a petition alleging breach of constitutional rights, which Marete J dismissed with costs. The Board then sought stay pending an intended appeal, citing contempt proceedings by the union and fiscal strain. The court applied the settled twin principles: the intended appeal was arguable on whether the ELRC erred in declining to address merits, but the nugatory limb failed. The ELRC had issued only a negative order of dismissal with costs, incapable of execution, following George Ole Sangui and William W. Wahome. The Board had not sought to stay the costs order. Failing to establish both limbs, the motion was dismissed with costs to the union. The decision affirms that stay of execution does not lie over negative dismissal orders.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable on the ground whether the ELRC erred in declining to address merits at the petition stage

Reasoning

The court found a single bona fide arguable ground sufficient: whether the ELRC erred in holding that merits should not be addressed, given the petition challenged the PSC decision on merits and substance. Arguability does not require the appeal to necessarily succeed, only that it is not frivolous.

p. 3
02

Nugatory aspect / stay of a negative order

Holding

The ELRC judgment dismissed the petition with costs only; being a negative order incapable of execution, no stay of execution could be granted

Reasoning

Applying George Ole Sangui and William W. Wahome, the court held that a dismissal order confers no relief capable of enforcement save costs. Since the applicant did not seek to stay the costs order, the second limb of Rule 5(2)(b) failed and the application had to be dismissed.

p. 3

Legal principles established

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  • A stay of execution cannot lie over a negative order of dismissal that requires no party to do or refrain from doing anything; only positive orders capable of execution are stayable
  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; failure on either is fatal

Court orders

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  1. 1.The notice of motion dated 9th September 2021 is dismissed with costs to the 2nd respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Multimedia University & Another vs. Professor Gitile N. Naituli
    (2014) eKLR

    Restating the twin principles for stay under Rule 5(2)(b): arguable appeal and nugatory appeal

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2103[ eKLR (as printed)

    Summary of the jurisprudence on Rule 5(2)(b), including that both twin principles must be satisfied

  • George Ole Sangui & 12 others v Kedong Ranch Limited
    [2015] eKLR

    A dismissal order is a negative order, not capable of execution or enforcement, and cannot be stayed

  • William W. Wahome & The Registrar of Trade Unions vs. Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers
    [2006] eKLR

    No judgment capable of enforcement by execution save for costs where the order denied relief

On appeal from
Employment and Labour Relations Court at Nyeri
Nyeri ELRC Petition No. 26 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (intended appeal)

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, "Laikipia County Public Service Board v Public Service Commission & another; Laikipia County Government (Interested Party)", Case Analysis (2022). Civil Application E081 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/908/eng@2022-07-22

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