Bernard M Ngore (Chairperson NSC) & 3 others v Okoiti & 11 others
The bottom line
#Kenya's Court of Appeal paused a ruling that quashed KEBS board appointments, saying a functioning standards regulator matters more than individual interests while the appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable: the contention that the appointments were declared unconstitutional although the Standards Act underpinning them had not been repealed, and the alleged misinterpretation of Articles 10 and 232 and elevation of the Mwongozo Circular over the Standards Act, raised serious questions of law.
The court examined the draft memorandum of appeal and identified contentions going to the validity of the appointments and the hierarchy between statute and circular. It held these issues were not frivolous and merited consideration by the Court, satisfying the first limb of the Rule 5(2)(b) test.
Nugatory effect and public interest
The quashed appointments left KEBS without a functional board and chief executive, exposing the public to substandard goods; public interest prevailed over individual interest, so the appeal would be rendered nugatory absent stay.
The court noted the NSC's statutory duty under Sections 7, 9 and 10 of the Standards Act to set, approve and certify standards daily. Without substantive office bearers the institution could not run, and the applicants would be replaced, rendering a successful appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; one limb alone is insufficient.
- An arguable appeal need not be one that must succeed; it suffices that it raises a serious question of law or a reasonable argument deserving consideration.
- In assessing nugatory effect, the court must weigh the conflicting claims of both sides, including public interest, within the circumstances of each case.
Court orders
#- 1.Stay of execution of the judgment and decree of the ELRC dated 25 May 2022 pending the hearing and determination of the intended appeal
- 2.Costs to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Cause No. 19 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard M Ngore (Chairperson NSC) & 3 others v Okoiti & 11 others", Case Analysis (2022). Civil Appeal (Application) E385 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1186/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.