Judicial Service Commission v Kisang (Civil Application E391 of 2022) [2024] KECA 1498 (KLR)
The bottom line
#The Court of Appeal paused enforcement of an order reinstating a Judicial Service Commission employee until his unfair-termination appeal is decided.
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 intended appeal is arguable and not frivolous
- 2.Whether, unless stay of execution is granted, the appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The grounds of appeal - including alleged misapprehension of reinstatement principles and that the Judge usurped JSC's disciplinary mandate - were not frivolous and warranted further scrutiny.
The Court made only a preliminary assessment, as required at the stay stage. It did not decide the merits of the complaints about the ELRC's reinstatement order; it found merely that the grounds raised in the Memorandum of Appeal were not frivolous and warranted further scrutiny by the Court, thereby satisfying the first limb of the Rule 5(2)(b) test.
Nugatory value of the appeal
Reinstating the respondent to the sensitive position of Executive Officer before the appeal is heard would take away the substratum of the appeal, and salaries earned might be irrecoverable.
The Court weighed the risk of contempt proceedings against JSC for non-compliance (a warrant of arrest having been sought against the Chief Registrar) against the prejudice of reinstatement. It noted the respondent gave no assurance about his ability to refund salaries if the appeal succeeded, making the appeal nugatory if stay were refused.
Legal principles established
#- Under Rule 5(2)(b) the Court may grant stay pending appeal only where the applicant demonstrates the appeal is arguable and that the appeal would be rendered nugatory if stay is not granted.
Court orders
#- 1.Application dated 25th October 2022 allowed in terms of prayer 3
- 2.Order of stay of execution of the decree emanating from the judgment of the ELRC delivered on 29th September 2022 in ELRC Cause No. E521 of 2020 pending the hearing and determination of the appeal
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Cause No. E521 of 2020
- 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.
Undoubtedly, under Rule 5(2)(b) of the Court of Appeal Rules, the Court has the discretion to grant an order of stay of execution pending appeal if the applicant demonstrates that the appeal or intended appeal is arguable and not frivolous and that unless the order sought is granted, the appeal, if successful, would be rendered nugatory.
Consequently, the application dated 25th October 2022 is hereby allowed in terms of prayer 3. We grant an order of stay of execution of the decree emanating from the judgment of the ELRC delivered on 29th September 2022 in ELRC Cause No. E521 of 2020 pending the hearing and determination of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Kisang (Civil Application E391 of 2022) [2024] KECA 1498 (KLR)", Case Analysis (2024). Civil Appeal No. E811 of 2022 (application dated 25th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1498/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.