Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 1355 (KLR)
The bottom line
#The High Court refused to pause the reinstatement of removed Kakamega County Public Service Board members, ruling that a judge cannot doubt his own judgment to allow an appeal.
What this practically means
#Executive summary
#Key legal issues
#Test for stay of execution/order pending appeal
The Court adopted the two-limb test from the Court of Appeal: arguability of the appeal and nugatory-ness of its success absent stay, both of which must be demonstrated.
The Court relied on Order 42 rule 6 of the Civil Procedure Rules and on the Court of Appeal decision in National Assembly & 47 others v Okoiti & 169 others, expressly upholding the criteria pronounced there for stay applications.
Whether the Court can find its own decision arguable on appeal
A first-instance judge who has found a decision unconstitutional and tainted with illegality cannot, on the same record, conclude that there is an arguable appeal without doubting his own judgment.
The Court agreed with the Petitioners that granting stay on the basis of an arguable appeal would amount to the judge sitting on appeal against his own decision, which the unique circumstances of the case did not permit.
Public interest in the grant of stay
Having extinguished the presumption of constitutionality and lawfulness of the County Assembly's removal process, a stay would enable further violation of the Petitioners' rights and was contrary to public interest, as the people of Kakamega County were entitled to the Board's services.
Following the Okoiti decision, the Court held that the presumption of validity was extinguished upon the declaration of unconstitutionality; the Board's functions had been in abeyance since 14th December 2023 and a stay would prolong that deprivation of public service.
Legal principles established
#- An applicant for stay pending appeal must demonstrate both that the appeal is arguable and that its success would be rendered nugatory without stay; both limbs must be shown.
- Once a trial court declares a decision unconstitutional, the presumption of its constitutionality is extinguished and public interest generally opposes a stay that would preserve the unconstitutional state of affairs.
Court orders
#- 1.The application for stay of the Court order of reinstatement of the Petitioners to office with immediate effect is disallowed
- 2.The Respondents' right to appeal is preserved
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (section 42, stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 1355 (KLR)", Case Analysis (2024). Petition dated 19th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1355/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.