Aura v Cabinet Secretary Ministry of Environment and Forestry & 2 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if stay is not granted
Key legal issues
#Arguability of the intended appeal
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
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.
Whether the appeal would be rendered nugatory
The nugatory limb failed: the applicant's former position had been filled and any loss was compensable in damages
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
#- 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
#- 1.The application dated May 22, 2022 is dismissed
- 2.Costs of the application to the 1st respondent, to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
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
Costs
Costs of the application to the 1st respondent; the costs shall abide the outcome of the appeal.
Quotable passages
#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.
We find that the applicant has failed to show how her appeal would be rendered nugatory should the application be disallowed.
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.
The applicant has shown that indeed she has an arguable appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.