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Court of AppealDismissedRule 34(7) ruling arising from Notice of Motion dated 3rd June 2025

Attorney General & 2 others v Magare-Gikenyi & 231 others (Civil Application E344 of 2025) [2025] KECA 1767 (KLR)

Court of Appeal of Kenya
24 October 2025
1,227 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an ELRC judgment quashing contested State House-level promotions, ruling that salary arrears can compensate affected officers.

What this practically means

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Executive summary

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This is a Rule 34(7) ruling of the Court of Appeal (P.O. Kiage, S. Gatembu Kairu and K. M'Inoti, JJ.A) giving reasons for the dismissal, announced on 2nd July 2025, of an application by the Attorney General and co-applicants for stay of execution of the judgment of the Employment and Labour Relations Court at Nairobi (B. Ongaya, J.) in Petition No. 202 of 2024 delivered on 29th May 2025. That judgment had upheld a petition by the 1st to 3rd respondents challenging promotions in the Office of the Attorney General, declaring that the promotions violated the Constitution, that appointments and promotions must be based on fair competition, merit, gender balance and ethnic and regional balance, and quashing the decision conveyed by the Solicitor General by memo dated 26th November 2024. The applicants, aggrieved and having lodged a Notice of Appeal, sought stay pending appeal. The Court accepted that the intended appeal was arguable, pointing to the challenge that the ELRC engaged in constitutional interpretation beyond a purely employer-employee dispute and to contested findings on public participation. However, applying the principles in Stanley Kangethe Kinyanjui v Tony Ketter, the Court held the applicants had not demonstrated that implementation would render the appeal nugatory, since any loss to affected officers could be compensated by payment of salary arrears. Following its own ruling in Attorney General v Magare-Gikenyi, the Court held public interest is better served by keeping promotions on hold until they pass constitutional and legal muster. The application was dismissed with each party bearing its own costs in view of the public interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (first limb of the stay test)
  2. 2.Whether the intended appeal would be rendered nugatory if the ELRC judgment is implemented (nugatory limb)
  3. 3.Whether public interest favoured the grant of stay

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court was persuaded the intended appeal was arguable, noting challenges to the ELRC's constitutional interpretation beyond an employer-employee dispute and its findings on public participation.

Reasoning

Despite respondents' contention that the ELRC decision merely gave effect to the Constitution and was unassailable, the Court identified bona fide issues including the complaint that the ELRC engaged in constitutional interpretation beyond a purely employer-employee dispute and that its findings on public participation were under challenge. It was therefore not persuaded the intended appeal was frivolous.

p. 9
02

Whether the appeal would be rendered nugatory if the judgment were implemented

Holding

The nugatory limb was not satisfied; consequences of implementation are reversible and compensable by salary arrears, so stay was refused.

Reasoning

Applying the principles in Stanley Kangethe Kinyanjui v Tony Ketter, including whether what is sought to be stayed is reversible or compensable in damages, the Court found the applicants had not shown the appeal would be rendered nugatory. It endorsed the related ruling in Attorney General v Magare-Gikenyi, holding that public interest favours keeping promotions on hold rather than granting stay, since affected officers can be compensated by payment of salary in arrears.

p. 10

Legal principles established

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  • Public interest is better served by putting on hold public-office promotions pending judicial review of their constitutionality, because any loss suffered by affected officers can adequately be compensated by payment of salary arrears.

Court orders

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  1. 1.Dismissal of the applicants' Notice of Motion dated 3rd June 2025 seeking stay of execution of the ELRC judgment and decree
  2. 2.Each party to bear its own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Nairobi
Petition No. 202 of 2024
Jurisdiction invoked
Rule 34(7) of the Court of Appeal Rules (reasons for dismissal of a stay of execution application pending intended appeal)

Relief refused

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Stay of execution of the ELRC judgment and decree in Petition No. 202 of 2024 pending the intended appeal, and suspension of implementation of that judgment and consequential orders

Although the intended appeal was found arguable, the applicants failed to demonstrate the appeal would be rendered nugatory; public interest is better served by putting promotions on hold, and any loss can be compensated by salary arrears

p. 10

Costs

each party bears its own costs of the application having regard to the public interest involved

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is for those reasons that we dismissed the application with an order that each party bears its own costs of the application having regard to the public interest involved.
p. 10Final orders - dismissal of stay application and costs
public interest is better served by putting on hold promotions of oficers until they are pronounced to have passed constitutional and legal muster because any loss sufiered by the afiected oficers can be compensated by payment of salary arrears
p. 10Public interest and nugatory test in stay applications
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.
p. 10Nugatory principle as stated in Stanley Kangethe Kinyanjui
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifiing.
p. 10Meaning of 'nugatory'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Attorney General & 2 others v Magare-Gikenyi & 231 others (Civil Application E344 of 2025) [2025] KECA 1767 (KLR)", Case Analysis (2025). Rule 34(7) ruling arising from Notice of Motion dated 3rd June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1767/eng@2025-10-24

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