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Court of AppealAllowedCivil Application No. E298 of 2023· [2024] KECA 96 (KLR)

Principal Secretary, Ministry of Interior and Coordination of National Government & 1 other v Joseph Kaguthi & 8 others

Court of Appeal of Kenya
9 February 2024
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal halted payment of a Kshs.128 million award to former security committee members until their appeal against the ruling is heard.

What this practically means

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Executive summary

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This was an application by the Principal Secretary, Ministry of Interior and Coordination of National Government and the Attorney General under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment and ruling of Nzioki, J. of the Employment and Labour Relations Court in ELRC Petition No. 84 of 2020 (delivered 27th October 2022 and 25th April 2023) and stay of proceedings in High Court Judicial Review Misc. Application No. E065 of 2023, in which the respondents sought mandamus to compel compliance with the ELRC decree. The respondents, members of the National Committee on the Implementation of Citizen Participation in Security appointed for 2016-2018, had been awarded approximately Kshs.128,744,000 in underpayment, token constitutional damages and gratuity at 31% of gross salary for 22 months, with interest and costs. The Court of Appeal, applying the twin principles from Stanley Kang'ethe v Tony Ketter, found a single bona fide arguable ground in the challenge to the gratuity award (which had not been pleaded) and found the appeal would be rendered nugatory if the colossal sum was paid from public funds with recovery uncertain. The court also invoked the public-interest reasoning of the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji on husbandry of public resources. The application was allowed: both stay of execution and stay of the judicial review proceedings were granted pending determination of the appeal, with costs of the application to abide the appeal. The application did not disturb the decision below; the main appeal remains to be determined.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants demonstrated an arguable appeal; a single bona fide arguable ground suffices and the appeal need not necessarily succeed.

Reasoning

The applicants had already filed the main appeal, Civil Appeal No. E527 of 2023. Among the grounds raised was the challenge to the trial court's award of gratuity at 31% for 22 months of service despite gratuity not having been pleaded, together with the award of commercial-rate interest in default. The court found these grounds were not idle or frivolous, but declined to say more to avoid embarrassing the bench seized of the main appeal.

p. 5
02

Whether the appeal would be rendered nugatory absent stay

Holding

The applicants demonstrated the nugatory limb; if the colossal decretal sum was paid out of public funds, recovery would not be guaranteed and the appeal would be rendered nugatory.

Reasoning

The court applied the Stanley Kang'ethe test: whether what is sought to be stayed is reversible, or if not reversible, whether damages would reasonably compensate the aggrieved party. The decretal sum was colossal, payable against public funds, and recovery from the retired respondents was not guaranteed. Proceedings for mandamus in the High Court threatened to compel compliance before the appeal was determined. Public interest and good governance over scarce public resources reinforced the conclusion.

p. 5

Legal principles established

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  • To obtain stay under rule 5(2)(b) the applicant must satisfy the twin principles: an arguable appeal (not necessarily one that will succeed) and that the appeal will be rendered nugatory unless stay is granted; both limbs must be demonstrated.
  • Both limbs of the rule 5(2)(b) test must be demonstrated to the court's satisfaction before stay is granted.

Court orders

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  1. 1.Stay of execution of the judgment and ruling delivered on 25th April 2023 and 27th October 2022 in ELRC Petition No. 84 of 2020 pending the hearing and determination of Civil Appeal No. E298 of 2023
  2. 2.Stay of proceedings in the High Court in HC JR Miscellaneous Application No. E065 of 2023 pending the hearing and determination of Civil Appeal No. E298 of 2023
  3. 3.Costs of the application to abide the appeal
On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Petition No. 84 of 2020
Jurisdiction invoked
Articles 22, 23, 156(4) and (6), 159(2) and 164(3) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 5(2)(b), 42 and 47 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, "Principal Secretary, Ministry of Interior and Coordination of National Government & 1 other v Joseph Kaguthi & 8 others", Case Analysis (2024). Civil Application No. E298 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/96/eng@2024-02-09

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