IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLICATION
(An application for stay of execution of the Judgment and Decree
of the Employment & Labour Relations Court of Kenya at Nairobi
Petition No.

OPINION

1. The applicants have come before us by way of notice of motion expressed

to be brought Under Article 164 (3)(a) of the Constitution, Sections 3, 3A

and 3B of the Appellate Jurisdiction Act, and Rule 5(2)(b) of the Court of

Appeal Rules (2010) for the following orders:

“a) That this application be certified urgent and service thereof

be dispensed with in the first instance.
b) That pending the hearing and determination of this
application, this Honorable Court be pleased to grant an
interim stay of execution of the Judgment and Decree of the
Employment and Labor Relations Court delivered by Hon.
Justice Ocharo Kebira on 31st October, 2022 in Nairobi ELRC
Cause No. E119 of 2022: Dr Nairn Bilal Yaseen "The Attorney
General & 3 Others.

d) That the Honorable Court be pleased to issue any other

further order that it deems fit in the circumstances of the case.
e) That costs of the application be in the cause.”

2. This application rises from the Judgment of the Employment and Labor

Court at Nairobi (J.) delivered on 31st October, 2022 in Nairobi Petition

No. of 2022. The gist of the petition was that the respondent herein had

served as Managing Director of KBC for a period of 3 years. His contract

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 of employment provided for renewal of his appointment upon a favorable

evaluation. Despite a favorable evaluation and recommendation by the

Board of Directors KBC, the interested party herein, the applicants failed

to renew the respondent’s contract of employment.

3. The applicants herein stated that the Cabinet Secretary was under no

obligation to reappoint the respondent herein irrespective of the positive

evaluation as the wording of the clause is such as to give discretion to

the CS. The applicants stated further that they conducted a competitive

recruitment for the post in line with the article 232 of the Constitution

of Kenya, 2010 and Clause A.6 of the Human Resource Policies and

Procedures Manual for the Public Service which stipulates the role of

the Cabinet Secretaries as being accountable individually and

collectively to the President for the exercise of their powers and the

performance of their functions concerning a matter for which the

Cabinet Secretary is responsible.

4. Pursuant to the arguments by the parties, the learned Judge gave

Judgement for the respondent herein and gave the following orders.

I. “A declaration that the Petitioner had a legitimate expectation

that his contract of employment could be renewed, a legitimate
expectation, the Respondents have violated.
II. A declaration that the Respondents have violated the
constitutional provisions under Article 10, 41 47, and 232, of
the Constitution.
III. A declaration that the Respondents violated the Petitioner's
rights under Article, 41 and 47 of the Constitution.

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 IV. The Respondents are hereby restrained by way of a permanent
injunction from recruiting any other person for the position of
the Managing Director, Kenya Broadcasting Corporation.
V. An order of mandamus is hereby issued against the 1st
Respondent directing them to reappoint the Petitioner pursuant
to the recommendation of the Interested Party's Board and have
the same Gazetted as required by law.
VI. Costs of this petition to be in favor of the Petitioner against the
Respondents.”

5. The applicants being aggrieved by the Judgment and decree of the

Employment and Labor Court intend to challenge it in this court. In the

meantime, they have brought the instant motion for orders set out at

the beginning of this ruling. The application is premised on the twin

principles of Rule 5(2)(b) of the Court of Appeal Rules, namely; that the

applicants have an arguable appeal, and secondly that the appeal will

be rendered nugatory if an injunction and stay of proceedings are not

granted.

6. The respondent opposes the application and reiterates that, the

applicants are in contempt of court as they have not followed any orders

given by the Employment and labor court. He further states that the

applicants have no arguable appeal as all the issues that would be

raised in the appeal had been lawfully settled by the Employment and

labor court. He states further that the appeal will not be rendered

nugatory if the orders sought in this application are not granted.

7. Applications under Rule 5 (2) (b) are popular in this court and the

common vein running through them and the jurisprudence underlying

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 these decisions can today be summarized as follows:

a) “When one prays for orders of stay of execution, as we have found

that those are what the applicants are actually praying for, the
principles on which this Court acts, in exercise of its discretion in
such a matter, is first to decide whether the applicant has presented
an arguable appeal and second, whether the intended appeal would
be rendered nugatory if the interim orders sought were denied. From
the long line of decided cases on Rule 5(2) (b), the common vein
running through them and the jurisprudence underling those
decisions was summarized in the case of Stanley Kangethe
Kinyanjui vs. Tony Ketter & Others [2103[ eKLR and later
reiterated by this court in the case of Attorney General v Okiya
Omtatah Okoiti & another [2019] eKLR to be as follows:

i. In dealing with Rule 5(2) (b) the Court exercises original and
discretionary jurisdiction and that exercise does not constitute an
appeal from the trial Judge’s discretion to this Court. See
Multimedia University & Another vs. Professor Gitile N.
Naituli (2014) eKLR.
The discretion of this Court under Rule 5(2) (b) to grant a stay of
injunction is wide and unfettered provided it is just to do so. See
George Mwaura Kabui v Catherine Muthoni Ireri [2020] eKLR.
ii. The Court becomes seized of the matter only after the notice of
appeal has been filed under Rule 75. Halai & Another v
Thornton & Turpin (1963) Ltd. (1990) KLR 365.
iii. In considering whether the appeal will be rendered nugatory the
Court must bear in mind that each case must depend on its own
facts and peculiar circumstances. See David Morton Silverstein
v Atsango Chesoni, Civil Application No. Nai 189 of 2001.
iv. An applicant must satisfy the Court on both the twin principles.
See NIC Bank Limited & 2 others v Mombasa Water Products
Limited [2021] eKLR “…In considering the twin principles set
out above, we are cognizant that to benefit from the discretion of
this Court, both limbs must be demonstrated to the Court’s
satisfaction…”
v. On whether the appeal is arguable, it is sufficient if a single bona
fide arguable ground of appeal is raised. Kenya Hotel Properties
Limited V Willisden Investment Limited & 6 Others, [2013]
eKLR
vi. “An arguable appeal is not one which must necessarily succeed,
but one which ought to be argued fully before the Court; one
which is not frivolous.” Joseph Gitahi Gachau & Another v.

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 Pioneer Holdings (A) Ltd. & 2 others, Civil Application No.
124 of 2008.
vii. In considering an application brought under Rule 5(2) (b), the
Court must not make definitive or final findings of either fact or
law at that stage as doing so may embarrass the ultimate hearing
of the main appeal. “…the court must not make definitive or
final findings of either fact or law at that stage as doing so
may embarrass the ultimate hearing of the main appeal.
Damji Pragji (supra).”
viii. The term “nugatory” has to be given its full meaning. It does not
only mean worthless, futile or invalid. It also means trifling.
Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227
at page 232.
ix. Whether or not an appeal will be rendered nugatory depends on
whether or not what is sought to be stayed if allowed to happen
is reversible; or if it is not reversible whether damages will
reasonably compensate the party aggrieved. See Fred Matiang’i
the Cabinet Secretary, Ministry of Interior and Co-ordination
of National Government v Miguna Miguna & 4 others [2018]
eKLR
x. Where it is alleged by the applicant that an appeal will be rendered
nugatory on account of the respondent's alleged impecunity, the
onus shifts to the latter to rebut by evidence the claim.
International Laboratory for Research on Animal Diseases v
Kinyua, [1990] KLR 403.

8. In considering this application we shall bear in mind these principles.

On whether the appeal is arguable, the applicants have deposed that;

(a) The learned judge declared that the respondent had a legitimate
expectation and the applicants claim that the legitimate expectation
cannot be considered legitimate in a fixed term contract.

(b) The learned Judge found the applicants have violated the
constitutional provisions under Article 10, 41 47, and 232, of the
Constitution and gave an order of mandamus against the applicant
directing them to reappoint the Petitioner pursuant to the
recommendation of the Interested Party's Board and have the same
Gazetted as required by law and restrained the applicant by way of
a permanent injunction from recruiting any other person for the
position of the Managing Director, Kenya Broadcasting

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 Corporation. The Applicants argue that this is order violates it’s
right to choose its employees and desecrates freedom of contract
stand to be desecrated. This further adversely affects the smooth
running of Kenya Broadcasting Corporation.

9. Although we are not required to set out more than one ground to show

that the appeal is arguable, in our view these grounds raise arguable

points.

10. On whether the appeal will be rendered nugatory we are not convinced

that this will happen in fact it would appear that granting the

application is what will make the appeal an academic exercise. An order

of stay of execution would greatly prejudice the Respondent as such stay

would give the applicants the liberty to recruit another person for the

position of Managing Director. The substratum of the intended appeal

will be preserved even if we do not grant an order for stay. The

application fails on this limb.

11. The Supreme Court in Gatirau Peter Munya vs. Dickson Mwenda

Kithiji & 2 Others [2014] eKLR added a third consideration, this being

whether it is in the public interest that the order of stay be granted. Hon.

Mike Mbuvi Sonko vs. the Clerk, County Assembly of Nairobi City &

11 Others Civil Application No. E228 of 2021(unreported) “…public

interest is also an element for consideration in an application for relief

under Rule 5(2) (b) of this Court’s Rules.” However, none of the parties

put this matter before us. We cannot hence declare ourselves on this

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 limb suo moto.

12. In the result we dismiss the application dated 10th November, 2022 with

Costs.

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