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Court of AppealAllowedCivil Application E097 of 2022

Judicial Service Commission v Oyatsi

Court of Appeal
7 October 2022
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused enforcement of a KShs.13.6 million employment judgment against the Judicial Service Commission until its appeal is heard.

What this practically means

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Executive summary

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The Judicial Service Commission moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the Employment & Labour Relations Court (Nduma Nderi, J.) delivered on 10 March 2022 in a constitutional petition by Susan Khakasa Oyatsi. The trial court had found that the respondent's over-six-year tenure in an acting capacity as Director of Finance was unlawful, deemed her substantively appointed, and awarded special damages of KShs.13.6 Million. The Commission filed a notice of appeal and sought stay pending the intended appeal, arguing the appeal raised arguable points - notably that the trial court effectively exercised appointment powers without competitive recruitment, and that the damages ignored allowances already paid - and that execution would be nugatory because the Chief Registrar would be compelled to delegate statutory functions under the Public Finance Management Act to an unqualified person, and the decretal sum, being public funds, might be irrecoverable. The respondent opposed, contending the appeal was unauthorized and hopeless and that any harm was reversible since she remained an employee from whom funds could be recovered. Applying the settled twin test - arguability and nugatory aspect - the Court found the draft memorandum raised arguable points and that execution would render the appeal nugatory, citing the irreversible nature of decisions made in the office and the public funds involved. The application was allowed and stay of execution granted pending the intended appeal, with costs of the application to abide its outcome. The ruling is a single judgment of the full bench of three Judges of Appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable and not frivolous
  2. 2.Whether, unless stay of execution is granted, the appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised arguable points, including whether the trial court erred in deeming the respondent appointed without competitive recruitment and in the award of damages.

Reasoning

The Court perused the draft memorandum and found grounds touching on the trial court's exercise of appointment powers and the damages award. It could not go into merits at that stage; it was enough that the grounds were not frivolous and merited consideration, applying Wasike vs. Swala.

p. 4
02

Nugatory aspect

Holding

Execution would render the appeal nugatory: the respondent would exercise crucial, potentially irreversible office duties, and payment of KShs.13.6 Million in public funds might be irrecoverable.

Reasoning

Applying Reliance Bank v Norlake, the Court weighed the conflicting claims. It accepted that execution would place the respondent in a decision-making office where acts might be irreversible for want of authority, and that recovery of the decretal sum from the respondent was uncertain, engaging public interest.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal is arguable and that it will be rendered nugatory unless stay is granted.
  • Rule 5(2)(b) is a preservation jurisdiction safeguarding the substratum of an appeal, derived from Article 164(3) of the Constitution.
  • An arguable appeal need not necessarily succeed; it suffices that it merits consideration by the Court.
  • Factors rendering an appeal nugatory are considered within the circumstances of each case, weighing the conflicting claims of both sides.

Court orders

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  1. 1.Stay of execution of the judgment and decree of Nduma Nderi, J. dated March 10, 2022 pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment & Labour Relations Court of Kenya at Nairobi
Nairobi Constitutional Petition No. E111 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, derived from Article 164(3) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The applicant having demonstrated both limbs to our satisfaction, we allow the application and order stay of execution of the judgment and decree of Nduma Nderi, J. dated the March 10, 2022 pending the hearing and determination of the intended appeal.
p. 4Final orders - stay granted
The jurisdiction is original and discretionary and for an applicant to succeed he/she must demonstrate that the appeal or intended appeal is not idle or frivolous but arguable and secondly, that unless stay is granted and the appeal succeeds, it will be rendered nugatory.
p. 3Rule 5(2)(b) twin test
As stated in Wasike vs. Swala [1984] eKLR an arguable appeal is not one that must necessarily succeed but one which merits consideration by the Court.
p. 4Standard of arguability
Costs of the application shall abide the outcome of the intended appeal.
p. 4Costs

Issues in the judgment

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minor

Petition number inconsistency: motion cites E111 of 2021, heading cites E111 of 2020.

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, "Judicial Service Commission v Oyatsi", Case Analysis (2022). Civil Application E097 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1062/eng@2022-10-07

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