Isiolo County Government & 2 others v Steve Saimu Leleruk & 8 others

MARY MURIGE .......................................................................... 16TH RESPONDENT ALI HALAKHE DUBA ............................................................... 17TH RESPONDENT SADIK SHARAMO ..................................................................... 18TH RESPONDENT SHUKRI GALGALO ................................................................... 19TH RESPONDENT EMILY KENDI ............................................................................. 20TH RESPONDENT MARY NJERI MAHINDAH ....................................................... 21ST RESPONDENT NAOMI MWONGELI MUENDO ............................................. 22ND RESPONDENT ABDI RIZAK MUHAMUDI ...................................................... 23RD RESPONDENT AMINA CHA CHU HALAKHE ................................................ 24TH RESPONDENT HALIMA BIDU ADHI ................................................................ 25TH RESPONDENT WARE HALKHANO ................................................................... 26TH RESPONDENT ADAN GODANA BORU ............................................................ 27TH RESPONDENT DANSOYE BONAYA KONSO .................................................... 28TH RESPONDENT ANTONY MURIITHI ................................................................ 29TH RESPONDENT KHADIJA ADEN ......................................................................... 30TH RESPONDENT JULIETA NAKIPAK ETODO ..................................................... 31ST RESPONDENT MOLU ALI GALGALO ............................................................... 32ND RESPONDENT MOHAMMED OSMAN DAMBALA ......................................... 33RD RESPONDENT MORINE KAGENI MURANGIRI ............................................ 34TH RESPONDENT ISSA ISACK HARET .................................................................. 35TH RESPONDENT HASSAN FUN AN WARE .......................................................... 36TH RESPONDENT SHUKRI HASSAN BADA .......................................................... 37TH RESPONDENT HASSAN ALI GALGALO ........................................................... 38TH RESPONDENT ADAM KOTO HUKA ................................................................. 39TH RESPONDENT HADIJA WARIO ......................................................................... 40TH RESPONDENT ABGUDO ADAN ALI .................................................................. 41ST RESPONDENT ABDI ROBA ................................................................................. 42ND RESPONDENT HASSAN MOHAMMED ............................................................ 43RD RESPONDENT (An application for stay of execution against the Judgment and Decree of the Employment and Labour Relations Court at Nyeri (O. N. Makau, J.) delivered on 24th January, 2025 in E.L.R.C Petition No. E010 of 2023) https://new.kenyalaw.org/akn/ke/judgment/keca/2026/336/eng@2026-02-27 2

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RULING 1. The applicants, Isiolo County Government, Isiolo County Secretary and Isiolo County Public Service Board have by Motion brought against the 42 respondents under various provisions of law including rule 5 (2)(b) of the Court of Appeal Rules prayed in the main that pending the hearing and determination of the application and the intended appeal we be pleased to grant an order of stay of execution of the judgment delivered on 24th January, 2025, and the resultant orders arising from Meru ELRC Petition EO10 of 2023. In grounds in support of the Motion and in a supporting affidavit of Dade Boru, the County Secretary of the 1st applicant it is stated amongst other things that after the said judgment the Judge (Makau, J.) declined an application for stay of execution pending appeal; that the respondents may execute that judgment at any time; that the judgment has been appealed which appeal has high chances of success; that in case the appeal succeeds there are no means known to the applicant for recovering moneys paid out to the respondents whose financial status is not ascertainable; that there is no inordinate delay in bringing the application. Further, that the applicants have applied for certified copies of proceedings to enable them appeal. Grounds to be argued in the appeal include: that the Judge erred in law and fact in finding that he had jurisdiction to entertain the petition but overlooked provisions of section 77 of the County Government Act which mandates Public Service Commission to entertain and hear employment appeals emanating from County Governments including recruitment, selection, appointment, qualification to office, remuneration and terms of service; that the Judge erred in law and fact in finding that the Public Service Commission was only mandated to hear appeals from County Public Service Board and could not grant reliefs and, therefore, that the petitioners (respondents) did not have to pursue the Public Service Commission appeal route; amongst other grounds. The applicants further state that they are likely to suffer loss that cannot be compensated; that it is just that the application be granted. 2. Attached to the Motion is a copy of the impugned judgment, Notice of Appeal to appeal against the whole judgment; letter bespeaking proceedings and draft Memorandum of Appeal. 3. There is a replying affidavit by Anthony Muriithi (the 28th respondent) who with authority of the other respondents states, inter alia, that they authorized KUDHEIHA (a union under the Labour Relations Act) to represent them; that they objected before the Judge to the application for stay of execution because: “…we are still employees of the applicants up to date and still continue to suffer …” He gives various facts leading to the filing of the petition, its prosecution, judgment and events post judgment deponing that there is no arguable appeal. 4. When the Motion was heard on 28th April, 2025 we gave interim orders of stay of execution of that judgment pending this ruling. These are the reasons why we took that action. 5. For an applicant to succeed in this Court in an application for stay of execution pending appeal, it must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that the appeal is not frivolous. Such an applicant must, in addition, show that the appeal would be rendered nugatory absent stay – see for a summary of those principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR. 6. Emerging jurisprudence shows that the public interest is also a necessary consideration in such an application. 7. We have perused draft Memorandum of Appeal attached to the Motion. It is intended to be argued on appeal, for instance, that the Employment and Labour Relations Court lacked jurisdiction to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/336/eng@2026-02-27 3

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entertain the petition in view of the provisions of section 77 of the County Government Act. It is further intended to be argued on appeal that the Judge erred in rewriting the employment contracts between the applicants and the respondents. We find those to be not idle grounds, they are arguable grounds on appeal calling for the attention and determination of this Court. As has been held by this Court in various pronouncements an arguable ground on appeal is not one that will succeed, it is one that ought to be fully argued before the Court for determination - see Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd Civil Application No. Nai 345 of 2004. 8. The applicants submit, on the nugatory aspect, that the appeal will be rendered nugatory if they (the applicants) proceed to convert the respondents’ contracts from casual to those on permanent basis as ordered by the Judge; that this will create chaos because the County payroll has been cleaned up and budgetary allocations made. It is also submitted that the respondents have no capacity to refund what would have been paid to them if the appeal was to succeed. The respondents have not responded to this claim. It was held by this Court in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR: Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya." 9. The respondents have not shown that they can put the applicants back to the original position if the appeal succeeds. Considering the facts of the case we think that the public interest leans in favour of the applicants as their financial operations may become chaotic if they have to get into new financial arrangements as they implement the judgment appealed from. 10. The applicants have satisfied the principles that apply in an application of this nature. We allow the Motion. Costs will be in the appeal. DATED AND DELIVERED AT NYERI THIS 27TH DAY OF FEBRUARY, 2026. S. ole KANTAI ................................ JUDGE OF APPEAL J. LESIIT ................................ JUDGE OF APPEAL ALI- ARONI ................................ 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/2026/336/eng@2026-02-27 4

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