Kenya Union of Clinical Officers v Kirinyaga County Public Service Board; Public Service Commission (Interested Party) (Miscellaneous Case E002 of 2021) [2025] KEELRC 58 (KLR)
The bottom line
#Kenyan courts cannot grant a stay of execution unless an appeal actually exists — file your notice of appeal first, or your stay application will be struck out with costs.
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 court has jurisdiction to grant the stay order sought.
- 2.Whether the court is functus officio.
- 3.Whether the application is res judicata.
- 4.Whether the application meets the legal threshold for granting stay of execution pending appeal.
Key legal issues
#Whether the court has jurisdiction to grant a stay of execution pending appeal where no appeal has been filed and no notice of appeal has been given
It does not. Order 42 rule 6 permits a trial court to grant stay only where there is a pending appeal, and an appeal to the Court of Appeal is deemed to exist only upon filing of the appeal or giving of a notice of appeal. As neither had occurred, the court lacked jurisdiction and struck out the application.
The court analysed Order 42 rule 6 of the Civil Procedure Rules and its side note, 'Stay in case of appeal', holding that the jurisdiction to grant stay arises only where an appeal is pending. Under subrule (4), an appeal to the Court of Appeal is deemed filed only when notice of appeal has been given under that Court's rules. In this case leave to appeal had been granted on 9th August 2024 and fourteen days had lapsed without a notice of appeal being lodged. Relying on the Nguruman decision, where the Court of Appeal strikes out rule 5(2)(b) applications absent a notice of appeal, the court found the position the same before the trial court and struck the application out with costs.
Legal principles established
#- A trial court can only exercise the power to grant stay of execution under Order 42 rule 6 when there is a pending appeal, evidenced by a filed appeal or a duly given notice of appeal, save for an informal application under subrule (5).
- An application for stay pending appeal must be struck out the moment the court realises that no appeal is pending and no notice of appeal has been given.
Court orders
#- 1.The application for stay of execution is struck out.
- 2.Costs of the application awarded to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay in case of appeal), as read with Rule 73 of the ELRC Procedure Rules
Relief refused
#Stay of implementation of the ruling and order of 9th August 2024 and consequential orders enforcing the PSC decision of 14th April 2021 pending the intended appeal
No appeal has been filed and no notice of appeal has been given, so the court lacks jurisdiction to grant stay pending a non-existent appeal.
Alternative orders of maintenance of status quo pending the intended appeal
Fell with the application, which was struck out for want of a pending appeal.
Costs
Costs of the application awarded to the Respondent ("I strike out the instant application for stay with costs").
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.
Consequently, I find that there is no pending appeal in relation to the judgment herein and this court lacks jurisdiction to grant stay of execution pending a non-existent appeal.
It follows that even this Court should strike out an application for stay pending appeal the minute it realizes that there exists no appeal pending or that no notice of appeal has been given as required by the Court of Appeal rules.
Accordingly, I strike out the instant application for stay with costs since there is neither a pending appeal nor notice of appeal given after the impugned judgment was entered on 9th August 2024, and leave to appeal was granted.
Issues in the judgment
#The supporting affidavit is sworn by Carolyne Kinyua, described as 'the Respondent's County Attorney', yet she is identified as supporting the Applicant's application, creating an internal inconsistency in the parties' descriptions.
The judgment is not headed with a case title or case number, and the names of the parties are not disclosed anywhere in the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Clinical Officers v Kirinyaga County Public Service Board; Public Service Commission (Interested Party) (Miscellaneous Case E002 of 2021) [2025] KEELRC 58 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/58/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.