Director of Public Prosecutions & another v Barasa & another
The bottom line
#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 under the first limb of the rule 5(2)(b) test
- 2.Whether, absent a stay, the intended appeal would be rendered nugatory
- 3.Whether public interest favours the grant of a stay pending appeal
Key legal issues
#Arguability of the intended appeal
The appeal is arguable, particularly on the ground that over forty promoted officers were nullified without being heard.
The court found that the trial court nullified promotions of more than forty non-party officers without affording them a hearing. Citing Mbaki v Macharia, it held this raises an arguable question on the fairness of the nullification process, sufficient for the first limb, without making final findings on the point.
Nugatory nature of the appeal if stay is refused
Enforcing the nullification orders pending appeal would cause harm not readily reversible, rendering the appeal nugatory.
The promoted officers are non-parties whose appointments have been acted upon; unwinding them would disrupt their status, remuneration and standing in ways not readily reversible by a later appellate order. The court drew on Stanley Kang'ethe Kinyanjui and Reliance Bank, weighing conflicting claims of both sides.
Public interest and balancing of discretion
Balancing party interests, non-party officers' rights and public interest in the integrity of the promotion process, stay was warranted.
The court invoked the third Munya principle on public interest, noted its discretion under rule 5(2)(b) is wide but judicial, and concluded that stay of the trial court's orders was warranted pending the appeal, while reserving the joinder question for the full hearing.
Legal principles established
#- The twin principles for stay under rule 5(2)(b) are an arguable appeal and that the appeal would be rendered nugatory absent stay; public interest is an additional consideration.
- An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and raises at least one arguable issue.
- Nugatory extends beyond outcomes that are worthless to those difficult to reverse in practical terms.
Court orders
#- 1.The Notice of Motion dated 7th July 2026 is allowed
- 2.The judgment and decree of the ELRC at Nairobi (J. K. Gakeri, J.) delivered on 25th June 2026 is stayed pending hearing and determination of the intended appeal
- 3.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Petition No. E033 of 2026
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution pending appeal)
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.
the judgment and decree of the ELRC at Nairobi (J. K. Gakeri, J.) delivered on 25th June 2026 be and is hereby stayed pending hearing and determination of the intended appeal; and
considering the public interest in the intended appeal, each party shall bear their own costs.
Firstly, an applicant has to satisfy that he or she has an arguable appeal. Secondly, he or she has to demonstrate that, unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
… the courts ought to consider the condition whether it would be in the public interest that the order of stay be granted.
nothing in this ruling determines the substantive question whether the affected officers ought to have been joined or heard before the trial court. That question remains a live ground for argument at the hearing of the appeal.
Issues in the judgment
#Judge's surname spelled inconsistently: coram 'LESSIT' versus signature block 'LESIIT'.
Paragraph numbering repeats '12' for multiple successive paragraphs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions & another v Barasa & another", Case Analysis (2026). Civil Application E361 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1827/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.