County Public Service Board of Narok v Kenya County Government Workers Union
The bottom line
#Kenya's Court of Appeal paused a reinstatement order and contempt sentencing against Narok County officials until their appeal is heard.
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 preliminary objection that the application was lodged by a stranger and advocates not on record under Order 9 Rule 9 of the Civil Procedure Rules is tenable
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal, if successful, would be rendered nugatory absent stay
Key legal issues
#Preliminary objection based on Order 9 Rule 9 and representation
The preliminary objection was rejected; proceedings on appeal are distinct from those below and a change of advocate requires only a notice of change under rule 23(1).
The Court held that appellate proceedings are separate from the courts below. Rule 75(1) permits any person desiring to appeal to file a notice of appeal; nothing prohibits a party from instructing new advocates on appeal. The only requirement is a notice of change of advocate under rule 23(1), and an address of service may be changed under rule 18 without leave. The objection therefore had no basis in law.
Arguability of the intended appeal
The intended appeal was found arguable on the grounds that the trial court misdirected itself and failed to accord the board members a hearing.
The applicant contended the trial court misdirected itself, failed to consider pertinent facts, did not accord board members the right to be heard, and constrained its discretion. The Court applied the settled standard that an arguable point is merely one deserving of consideration, and without saying more, was satisfied the intended appeal was arguable.
Nugatory aspect
Both the payment of six months' salary and the threatened imprisonment of board members in civil jail would render the appeal nugatory.
The Court weighed the conflicting claims of both parties on their merits. It found that the six-month salary, if paid, might be irrecoverable from the member, a fact the respondent did not controvert. Further, the threatened sentencing of board members to six months' imprisonment in civil jail was real and irreversible. Both limbs satisfied the nugatory test.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted.
- A party changing advocates on appeal need only lodge a notice of change of advocate; failure to do so in the court below does not render the appeal a stranger's application.
- An arguable point need not be one that must succeed, only one deserving of consideration by the Court.
Court orders
#- 1.Stay of the decree and judgment of Wasilwa, J. delivered 2 December 2021 in ELRC Nakuru No. 457 of 2016 pending hearing and determination of the intended appeal
- 2.Stay of the ruling and order on contempt delivered 5 July 2022 pending the intended appeal
- 3.Stay of further proceedings in ELRC Nakuru No. 457 of 2016, including the sentencing proceedings set for 19 July 2022
- 4.Costs of the application 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
- Nakuru ELRC Cause No. E457 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
The upshot is that the application dated July 12, 2022 is allowed in its entirety. Costs of the application shall abide the outcome of the appeal.
The Court will grant a stay or an injunction, as the case may be if satisfied, firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly, that unless a stay or injunction is granted his appeal or intended appeal if successful, will be rendered nugatory.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties, and each case has to be considered on its merits.
Issues in the judgment
#Stanley Kang'ethe Kinyanjui v Tony Ketter referred to as '(supra)' but not previously cited in the ruling.
Date of sentencing proceedings appears as 17th July 2022 in the title but 19 July 2022 in the body.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Public Service Board of Narok v Kenya County Government Workers Union", Case Analysis (2022). Civil Application E038 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1338/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.