Principal Secretary, Ministry of Education, Department of Vocational & Technical Training & 1 other v Kenya Union of Post Primary Education Teachers (kuppet) & 2 others

Applying the settled two-limb test, the Court held that an arguable appeal need not succeed; it suffices that it is not frivolous and raises even a single bona fide point. The intended appeal raised three such points: setting aside the consent order at the instance of a stranger to it, res judicata, and whether the whole consent order was vitiated. The Court declined to say more, mindful not to prejudge the appeal itself.

The nugatory test concerns ensuring a successful appeal is not a pyrrhic victory: the Court grants stay where what is apprehended cannot be undone, or not without undue hardship or expense, or cannot be compensated by damages. The confusion in technical training institutions, uncertainty of recovering the Kshs 58,319,613.30 refund, and the ELRC's own stay of the quashing judgment convinced the Court the nugatory criterion was met.

KUPPET argued the notice of appeal was invalid because it was not endorsed by the registrar, not filed in court, and not served, thereby ousting the Court's jurisdiction. The Court held that in a stay-of-execution application it cannot validly determine the validity of a notice of appeal; those questions are germane to a striking-out application and not to be decided at this interlocutory stage.