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Court of AppealDismissedCivil Application E304 of 2022

Aura v Cabinet Secretary Ministry of Environment and Forestry & 2 others

Court of Appeal
21 October 2022
1,797 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an employment dispute because the director's job had already been filled and money could compensate any loss.

What this practically means

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Executive summary

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The applicant, Stella Marris Odero Aura, applied under rules 5(2)(b), 42, 4 and 47 of the Court of Appeal Rules for stay of execution and stay of further proceedings, and conservatory orders, pending an intended appeal against the ruling of the Employment and Labour Relations Court (Mbaru J, 12 May 2022) dismissing her petition challenging her retirement at age 60 rather than 65 as a person with disability. The respondents opposed, contending she never registered with the NCPWD database at least three years before retirement as required by regulation 70 of the PSC Regulations, that her position had already been filled by Dr. Gikungu, and that she had been paid all her dues. The Court of Appeal (Musinga, Sichale and Omondi JJA) restated the two-limb rule 5(2)(b) test: arguability and nugatory-ness. It found the appeal arguable, since the registration and procedure questions could only be determined at the hearing of the appeal. However, on the nugatory limb it held that the appointment to replace the applicant had already been made, that reversing it would cause confusion and would not be in the public interest, that there was nothing left to stay, and that any loss of employment years was a monetary issue compensable in damages. The application was therefore dismissed with costs to the 1st respondent, those costs to abide the outcome of the appeal. The intended appeal remains pending; the interlocutory ruling does not determine the merits of the retirement dispute.

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
  2. 2.Whether the appeal would be rendered nugatory if stay is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable on the question whether the applicant was registered as a person with disability at least 3 years before retirement and whether proper procedures were followed

Reasoning

The court held that the registration and procedure issues would be determined with finality at the hearing of the appeal; at the interlocutory stage the court cannot delve into the merits. The applicant showed a single bona fide issue, which is sufficient to satisfy the arguability limb.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

The nugatory limb failed: the applicant's former position had been filled and any loss was compensable in damages

Reasoning

The appointment to replace the applicant had already been made; reversing it would cause confusion and would not be in the public interest, so the application was overtaken by events. Any lost years of employment were treated as a monetary issue compensable by damages. The applicant failed to demonstrate nugatory-ness.

Legal principles established

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  • To succeed under rule 5(2)(b) an applicant must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted
  • An arguable appeal is not one that would necessarily succeed but one that merits consideration by the court; a single bona fide issue suffices
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The application dated May 22, 2022 is dismissed
  2. 2.Costs of the application to the 1st respondent, to abide the outcome of the 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 and Labour Relations Court of Kenya at Nairobi
ELRC Petition E1064 of 2021
Jurisdiction invoked
Rules 5(2)(b), 42, 4 and 47(1) and (2) of the Court of Appeal Rules

Relief refused

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Stay of execution of the orders of May 12, 2022 and stay of further proceedings in ELRC Petition E1064 of 2021

Applicant failed to satisfy the nugatory limb; the position has been filled and there is nothing to stay

p. 4

Conservatory order restraining respondents from deploying, employing or advertising the position of director of meteorological services

Reversing the appointment already made would cause confusion and would not be in the public interest

p. 4

Order that the applicant continue working as director of meteorological services on unchanged terms

Application dismissed for failure to meet the second limb of the rule 5(2)(b) test

p. 4

Costs

Costs of the application to the 1st respondent; the costs shall abide the outcome of the appeal.

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.

Having failed to satisfy the second limb of the test as is the standard in a rule 5(2) (b) application, this application is dismissed with costs to the 1st respondent. The costs of this application shall abide the outcome of the appeal.
p. 4Final orders - dismissal of the rule 5(2)(b) application
We find that the applicant has failed to show how her appeal would be rendered nugatory should the application be disallowed.
Failure of the nugatory limb
Whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party.
p. 3Test for nugatory-ness
The applicant has shown that indeed she has an arguable appeal.
p. 3Arguability limb satisfied

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, "Aura v Cabinet Secretary Ministry of Environment and Forestry & 2 others", Case Analysis (2022). Civil Application E304 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1151/eng@2022-10-21

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