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Attorney General & 2 others v Magare-Gikenyi & 231 others (Civil Application E344 of 2025) [2025] KECA 1767 (KLR) (24 October 2025) (Ruling)

Attorney General & 2 others v Magare-Gikenyi & 231 others (Civil Application E344 of 2025) [2025] KECA 1767 (KLR) (24 October 2025) (Ruling)
Citation
Attorney General & 2 others v Magare-Gikenyi & 231 others [2025] KECA 1767 (KLR)
Media Neutral Citation
[2025] KECA 1767 (KLR)
Court
Court of Appeal
Court station
Court of Appeal at Nairobi
Outcome
Dismissed
Case number
Civil Application E344 of 2025
Judges
PO Kiage, SG Kairu, K M'Inoti
Judgment date
24 October 2025
Language
English
Type
Judgment
Original source file
Download DOCX (34.8 KB)
Collections
Date published
17 December 2025
Case action
Ruling
Filing county
Nairobi
Order
The application with an order that each party bears its own costs of the application having regard to the public interest involved.
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Under Rule 34(7) of the Court of Appeal Rules
1.The applicants’ application by Notice of Motion dated 3rd June 2025 seeking an order of stay of execution of the judgment and decree issued by the Employment and Labour Relations Court (ELRC) at Nairobi (B. Ongaya, J.) in Petition No. 202 of 2024 on 29th May 2025 pending the hearing and determination of the applicants’ intended appeal and for an order suspending the implementation of that judgment and any consequential orders, came up for hearing before the Court on 2nd July 2025.
2.Having heard learned counsel Mr. James Ochieng Oduol for the applicants; Mr. M. Ogosso learned counsel for the Public Service Commission, the 4th respondent; and Dr. Magare- Gikenyi, the 1st respondent who appeared in person on his own behalf and on behalf of the 2nd and 3rd respondents; and in the absence of the other parties who were duly served with notice of hearing, we dismissed the application and reserved our reasons for doing so, which we now give.
3.The 1st to 3rd respondents petitioned the ELRC seeking, among other reliefs, declarations that appointments and promotions undertaken in the office of the Attorney General violated the Constitution and that the entire process resulting in the promotion of all the interested parties as communicated by the Solicitor General in a memo dated 26th November 2024 is unconstitutional, irregular, null and void. They sought orders of certiorari to quash the decision conveyed by the Solicitor General in that regard; and an order of prohibition prohibiting the implementation or giving effect to the decision of the Advisory Board conveyed by the Solicitor General in the said memo.
4.The petition was opposed, and after hearing the same, the learned Judge of the ELRC in the impugned judgment delivered on 29th May 2025 allowed the petition holding that the promotions of the interested parties violated the Constitution; declared that all appointments and promotions in the Office of the Attorney General must be based on fair competition and merit, gender balance and must represent the face of Kenya through ethnic and regional balance; and granted orders of certiorari and prohibition which had been sought.
5.Aggrieved, the applicants filed a Notice of Appeal dated 29th May 2025 on which the application the subject hereof dated 3rd June 2025 was hinged.
6.Urging the application before us, which was supported by an affidavit sworn by Shadrack J. Mose, Solicitor General, learned counsel for the applicants in written and oral submissions urged on the strength of the Supreme Court’s decision in Board of Governors, Moi High School Kabarak & Another v. Bell & 2 Others [2013] KESC 12 (KLR), among other court decisions, that the purpose of a stay is to preserve the court’s appellate power of review and possible reversal which would otherwise be lost if no stay is granted. It was submitted the legal test as pronounced by this Court in the case of Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR has been fulfilled; that as demonstrated in the applicants’ draft memorandum of appeal, there are serious and bona fide legal and constitutional questions and that the intended appeal is arguable.
7.Although the 1st to 3rd respondents in their submissions submitted that the decision of the ELRC is unassailable as it merely gave effect to the Constitution which does not sanction “non-competitive and non-meritorious appointment” and that the intended appeal is therefore “frivolous and has no arguable point of law”, we were persuaded that the intended appeal is indeed arguable. There is for instance the complaint that the ELRC in its decision “engaged in constitutional interpretation beyond a purely employer- employee dispute”. The findings by the ELRC on public participation are also under challenge. We do not think the intended appeal is frivolous.
8.On the nugatory aspect, it was submitted for the applicants that if the decision of the ELRC is implemented prior to the appeal being heard and determined, the appellate process will be rendered moot; that if implementation of the decision results in consequences that cannot be reversed or reasonably compensated in damages, the nugatory test is met. Reference was made to the decision of the Court in George Otieno Gache & Another v. Judith Akinyi Bonyo & 5 Others [2017] KECA 246 (KLR). It was pointed out that the process of effecting the decision of the ELRC was already underway. Moreover, it was urged that public interest favoured the grant of the orders sought.
9.The 1st to 3rd respondents on the other hand submitted that public interest and convenience tilts in favour of declining stay; that should the appeal ultimately succeed, the Court can reverse the decision of the ELRC and set it aside; that payment of backdated pay and salary in arrears would be adequate compensation.
10.We duly considered the rival arguments on whether this limb is met. In Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others (above) the Court stated that in considering whether an appeal will be rendered nugatory the Court must bear in mind that each case must depend on its own facts and peculiar circumstances and that:“ix.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.x.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.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.”
11.With those principles in mind we took the view that the applicants had not demonstrated that the intended appeal would be rendered nugatory. We concluded, as the Court, differently constituted did in the related case of Attorney General v. Magare-Gikenyi & 3 Others (Civil Application No. E693 of 2024) [2025] KECA 684 (KLR), that public interest is better served by putting on hold promotions of officers until they are pronounced to have passed constitutional and legal muster because any loss suffered by the affected officers can be compensated by payment of salary arrears. In that ruling, the Court stated:“It seems to us that public interest is better served by putting a hold on those promotions until they are pronounced to pass constitutional and legal muster by a court of law, because any loss suffered by the interested parties and affected state counsels can be compensated by payment of salary in arrears.”We respectfully agree.
12.It is for those reasons that we dismissed the application with an order that each party bears its own costs of the application having regard to the public interest involved.
DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER 2025.P.O. KIAGE..............................JUDGE OF APPEALS. GATEMBU KAIRU, C.Arb, FCIArb...............................JUDGE OF APPEALK. M’INOTI..............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar
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Date Case Court Judges Outcome Appeal outcome
24 October 2025 Attorney General & 2 others v Magare-Gikenyi & 231 others (Civil Application E344 of 2025) [2025] KECA 1767 (KLR) (24 October 2025) (Ruling) This judgment Court of Appeal K M'Inoti, PO Kiage, SG Kairu  
29 May 2025 ↳ Being an application for stay of execution and orders against the Judgement and Decree of the Employment and Labour Relations Court of Kenya at Nairobi (B. Ongaya, J.) dated 29th May 2025 in ELRC Petition No. E202 of 2024) Employment and Labour Relations Court B Ongaya Dismissed