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Court of AppealDismissedCivil Application (not stated on the copy; ruling on application dated 26th September 2025)

Abdikarim v Adan & 4 others (Civil Appeal (Application) E582 of 2025) [2026] KECA 1325 (KLR)

Court of Appeal
10 July 2026
941 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 refused to halt the re-recruitment of an Assistant Chief because the job's advertised salary meant any loss could be paid back in money.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi on an application dated 26th September 2025 by Jibril Adan Abdikarim, the successful candidate for the post of Assistant Chief II for Hadado South Sub-Location in Wajir County. The Employment and Labour Relations Court (Wasilwa, J.) had, in a ruling of 23rd September 2025, nullified his appointment, ordered fresh recruitment, and awarded the 1st respondent Kshs. 500,000.00 for violation of his rights after finding the applicant did not meet the advertised minimum age of thirty years. The applicant sought stay of execution of that ruling and a temporary injunction restraining re-advertisement and filling of the position pending appeal. The Court applied the established twin tests: arguability and the nugatory aspect (Multimedia University v GNN; Stanley Kangethe Kinyanjui v Tony Ketter; Joseph Gitahi Gachau v Pioneer Holdings). It found the intended appeal arguable - a single arguable point suffices - including whether age can, without statutory basis, ground nullification of a public appointment. However, it held the nugatory aspect was not demonstrated: the salary scale had been advertised, so any loss was easily quantifiable and reparable in damages, and the applicant claimed only personal loss without asserting public interest in maintaining the appointment. The application was dismissed with no orders as to costs, the Court noting the applicant's bid was an endeavour to serve the public. The decision below was not disturbed; the appeal remains pending.

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 and not frivolous
  2. 2.Whether the appeal would be rendered nugatory if stay of execution of the ELRC ruling and a temporary injunction are not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal is arguable and not frivolous; one arguable point suffices, including whether age can without statutory basis ground nullification of a public appointment

Reasoning

The court examined the memorandum of appeal and identified a question meriting appellate consideration: whether age, absent statutory basis, can lawfully nullify a public appointment. Applying established authority that a single arguable point suffices, the court was persuaded the appeal was not frivolous.

p. 2
02

Nugatory aspect / whether loss is compensable

Holding

No nugatory aspect shown; the salary scale was advertised, loss was easily quantifiable and reparable, and the applicant claimed only personal loss, not public interest

Reasoning

Applying Stanley Kangethe Kinyanjui v Tony Ketter, the court asked whether what is sought to be stayed is reversible or compensable by damages. Because the salary scale for the post was stated in the advertisement, any loss was quantifiable. The applicant also failed to assert public interest in staying execution over a public office, resting only on apprehended personal loss.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show that the appeal, if successful, will be rendered nugatory; where the loss is quantifiable and reparable in damages, nugatory aspect is not established, and a single arguable point suffices to show the appeal is arguable

Court orders

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  1. 1.The application dated 26th September 2025 is dismissed
  2. 2.No orders as to 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
On appeal from
Employment and Labour Relations Court
null
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the ELRC, with an interlocutory application for stay of execution and temporary injunction pending appeal (rules of this Court invoked per practice; no specific article stated in the judgment)

Relief refused

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Stay of execution of the ELRC ruling of 23rd September 2025 pending appeal

The applicant failed to demonstrate that the appeal would be rendered nugatory; the loss was quantifiable and reparable

p. 3

Temporary injunction restraining advertising, recruiting or filling the position of Assistant Chief II for Hadado South Sub-Location

Failed together with the application for want of a demonstrated nugatory aspect

p. 3

Costs

No orders as to costs; each party to bear their own costs of the application

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.

One arguable point sufices. We are persuaded that the appeal is not frivolous. It is arguable.
p. 2Arguability threshold for stay pending appeal
whether an appeal will be rendered nugatory depends on whether 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. 2Test for the nugatory aspect (quoting Stanley Kangethe Kinyanjui v Tony Ketter)
Consequently, the application dated 26th September 2025 fails and is hereby dismissed.
p. 3Final orders - dismissal of the application
Given that the applicant’s bid is an endeavor to serve the public, we make no orders as to the costs of the application.
p. 3Costs order

Issues in the judgment

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minor

The copy bears an asterisk against the delivery date and the chronology is internally inconsistent: the application is dated 26th September 2025, the application was heard on 24th November 2025, yet delivery is stated as 10th July 2026

minor

The pleading describes the applicant as appointed Assistant Chief while the advertisement required candidates to be at least 30 years old, and the judgment itself records the appointment was 'as the Assistant Chief of Hadado South Sub-Location' versus 'Assistant Chief II' - minor internal inconsistency in the post title

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, "Abdikarim v Adan & 4 others (Civil Appeal (Application) E582 of 2025) [2026] KECA 1325 (KLR)", Case Analysis (2026). Civil Application (not stated on the copy; ruling on application dated 26th September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1325/eng@2026-07-10

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