Abdullahi Abidi Sheikh v Ministry of Interior and National Administration & 3 others

Commissioner and the Attorney General) in terminating his appointment. He asked for a declaration that his rights to fair administrative action and fair labour practices had been violated; a declaration that he was still legally holding the office; and sought to stop the fresh advertisement and recruitment. 3. The petition was defended, and in a judgment delivered on 9th May 2025 the claim was dismissed. It was found that the claim by the applicant that the impugned advertisement could not issue because he was still validly in office was not true because, by letter dated 26th November 2024, the 1st respondent had informed him that his appointment had been cancelled; and that a vacancy had occurred by reason of the cancellation of appointment. 4. The applicant filed a notice of appeal to this Court, seeking to challenge the findings by the ELRC. With the notice of appeal, he brought this application under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking an injunction to restrain the respondents from recruiting and appointing another person to the position of chief pending the hearing and determination of the intended appeal. In the grounds, supporting affidavit and the draft memorandum of appeal, the applicant complained that the ELRC had erred in finding that he had been served with the letter cancelling his appointment when, infact, he had not been served with the letter, and when the letter had in fact been issued after he had filed the petition. The learned Judge was further blamed for not finding that the applicant had not been accorded a fair administrative action and due process in the cancellation of his appointment. 5. The respondents filed a replying affidavit to challenge the application. 6. Learned counsel Ms. Msando for the applicant and learned counsel Mr. Kioko for the respondents appeared before us on the application and highlighted their written submissions. According to learned counsel Ms. Msando, the applicant was a Kenyan citizen, a public servant, and a government employee who was entitled to be heard before his employment was terminated. He was not heard, was not given a show cause letter and was not given an opportunity to challenge the allegations leveled against him, it was submitted. Consequently, his constitutional rights under Articles 41, 47 and 50 had been violated. It was further argued that the intended appeal would be rendered nugatory if the respondents proceeded to appoint a new chief following the interviews held on 26th August 2025. 7. It was submitted in opposition that the applicant was not entitled to the orders, his appointment having been cancelled and a new recruitment undertaken. It was also submitted that the applicant was unclean, having falsified his personal records. 8. The jurisdiction of this Court under Rule 5(2)(b) is original and discretionary. It is intended to do justice to the parties in the application. To be successful, the applicant must show that his appeal or intended appeal is arguable, and that the appeal or intended appeal will be rendered nugatory if stay or injunction is not granted (See Kenafric Matches Ltd -vs- Match Masters Limited & Another [2021] KECA 188 (KLR). 9. We have no hesitation in finding that the intended appeal raises arguable grounds, one of them being that the ELRC had erred by not pronouncing itself on the question whether or not the termination of the applicant followed due process and fair administrative action. 10. On whether the intended appeal will be rendered nugatory if the injunction is not granted, it was conceded that there has been a fresh recruitment of a chief for the Location. That would mean that the prayers sought have been overtaken by events. 11. Since arguability and the nugatory aspects have to be both established, we find that the application cannot succeed. The same is dismissed. 12. Given the facts of the case, we order those costs do abide the intended appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1863/eng@2025-11-07 2

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DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF NOVEMBER 2025. P.O KIAGE ............................. JUDGE OF APPEAL A.O. MUCHELULE ............................. JUDGE OF APPEAL W. KORIR ............................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1863/eng@2025-11-07 3

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