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Court of AppealAllowedApplication dated 27th November 2023 in intended appeal from ELRC at Mombasa· [2024] KECA 797 (KLR)

Kenya Ports Authority Board of Directors v Republic & 3 others (Civil Application E106 of 2023) [2024] KECA 797 (KLR)

Court of Appeal of Kenya
12 July 2024
1,333 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 enforcement of an employment ruling against Kenya Ports Authority until its challenge over the Public Service Commission's powers is decided.

What this practically means

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Executive summary

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KPA Board, aggrieved by an ELRC judgment of 13th July 2023 (Mbaru, J.) directing that its 20th April 2022 resolution implementing revised Human Resource Instruments and effecting new appointments and deployments be subjected to an audit by the Public Service Commission, with a report to the court for adoption, filed a Notice of Appeal and then moved the Court of Appeal at Mombasa for a stay of execution. The application was opposed by the PSC, which maintained that its constitutional powers under Article 234 extend to state corporations including KPA, relying on the Court of Appeal's decision in The Public Service Commission v. Katiba Institute; the 1st respondent did not appear, and the Attorney General supported the application. Applying the settled rule 5(2)(b) test - that the appeal must be arguable and, if successful, rendered nugatory absent a stay - the Court held that the memorandum of appeal raised bona fide issues on the scope of PSC's powers, making the appeal arguable. On the nugatory limb, the Court noted the instruments had been implemented and Kenya Ferry Services employees absorbed, and considered it less disruptive and in the public interest to maintain the status quo pending the appeal. The Court allowed the application, stayed execution of the ELRC judgment and consequential orders pending the intended appeal, and ordered costs of the application to be in the appeal.

Key legal issues

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01

Whether the intended appeal by KPA Board is arguable

Holding

The Court found the appeal arguable because the memorandum raised bona fide issues on the scope of PSC's powers under Article 234(2) vis-à-vis state corporations.

Reasoning

The applicant raised issues regarding the powers of the PSC contending they are not absolute and that the Judge erred in applying Article 234(2) to the applicant, while the PSC urged that its powers extend to state corporations. Given these rival positions, and since an arguable appeal need not necessarily succeed and a single bona fide issue suffices, the Court concluded the intended appeal was not frivolous but arguable.

p. 3
02

Whether the appeal would be rendered nugatory if the stay is not granted

Holding

The Court held it would be less disruptive and in the public interest to maintain the status quo pending the appeal, and granted the stay.

Reasoning

The applicant contended that implementation of the judgment would culminate in implementation of PSC recommendations once adopted as an order of the court, intruding on KPA's mandate and occasioning confusion. The Court noted that the Human Resource Instruments had been implemented and employees of Kenya Ferry Services absorbed, and reasoned that maintaining the existing state of affairs pending appeal was the less disruptive and more publicly beneficial course.

p. 3

Legal principles established

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  • An applicant for a stay under rule 5(2)(b) must demonstrate that the appeal is arguable and that, if successful, it will be rendered nugatory unless a stay is granted
  • An arguable appeal need not necessarily succeed; a single bona fide issue suffices
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible

Court orders

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  1. 1.An order staying execution of the judgment of the ELRC delivered on 13th July 2023 and of any consequential orders ensuing therefrom pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 234(2)
  • Constitution of Kenya, 2010Article 234(3)
  • Kenya Ports Authority Act
  • State Corporations Act

Cases cited (4)

  • Trust Bank Limited and another v Investech Bank Limited and 3 others
    [2000] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • The Public Service Commission v. Katiba Institute & others, Civil Appeal No. 638 of 2021
    Civil Appeal No. 638 of 2021
On appeal from
Employment and Labour Relations Court at Mombasa
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

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, "Kenya Ports Authority Board of Directors v Republic & 3 others (Civil Application E106 of 2023) [2024] KECA 797 (KLR)", Case Analysis (2024). Application dated 27th November 2023 in intended appeal from ELRC at Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/797/eng@2024-07-12

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