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Court of AppealAllowedCivil Appeal (Application) E385 of 2022· [2022] KECA 1186 (KLR)

Bernard M Ngore (Chairperson NSC) & 3 others v Okoiti & 11 others

Court of Appeal
21 October 2022
2,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Asike-Makhandia, J. Mohammed and HA Omondi, JJA) on a notice of motion dated 4 July 2022 brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment and decree of the Employment and Labour Relations Court (M. Onyango, J.) dated 25 May 2022 in Nairobi ELRC Cause No. 19 of 2020. The ELRC had declared irregular, null and void, and quashed the appointments of the Chairperson, Managing Director of KEBS and independent members of the National Standards Council. The applicants argued the intended appeal was arguable - the appointments were premised on the Standards Act, which had not been repealed - and that without stay KEBS was left without a functional board and chief executive, exposing the public to substandard goods. The 1st respondent (Okiya Omtatah Okoiti) opposed, contending the appeal was not arguable, that the applicants' terms were expiring or had been replaced, and that certiorari orders cannot be stayed. Applying the settled two-limb test from Chris Munga N. Bichage vs. Richard Nyagaka Tongi, the court found one arguable issue sufficient and held that public interest in a functioning standards regulator prevailed over individual interest, citing the Munya case. The application was allowed, with costs to abide the outcome of the intended appeal. The decision below was not disturbed at this interlocutory stage; the stay preserves the status quo pending appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

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.

Reasoning

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.

02

Nugatory effect and public interest

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Standards ActSections 7, 9 and 10
  • Constitution of Kenya, 2010Articles 10 and 232

Cases cited (7)

  • Attorney General vs. Katiba Institute & 2 others
    KECA 38

    That the Court granted stay where the ELRC had quashed appointment of board members and chairmen of several parastatals.

  • Co-operative Bank of Kenya Ltd vs. Banking Insurance of Finance Union (Kenya)
    [2015] eKLR

    One arguable point suffices to make an intended appeal deserving of hearing; it need not necessarily succeed.

  • Gitarau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Public interest should supersede private and individual interests in the nugatory analysis.

  • Multimedia University & Another vs. Professor Gitile N. Naituli
    [2014] eKLR

    Threshold of arguable appeal and nugatory aspect for stay applications.

  • Chief R.A. Okoya & others vs. S. Santilli & Others
    (SC 200 of 1989) [1990] NGSC 82

    Cited by the 1st respondent for the proposition that certiorari orders cannot be stayed.

  • Republic vs. Public Procurement Administrative Review Board & 3 others ex-parte Kenya Electricity Generating Company Ltd
    [2010] eKLR

    Cited by the 1st respondent on the effect of certiorari orders.

  • Chris Munga N. Bichage vs. Richard Nyagaka Tongi & 2 others
    [2013] eKLR

    The settled two-limb test for stay of execution pending appeal under Rule 5(2)(b).

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

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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, "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.