[2023] KECA 1475 (KLR)

Attorney General v Matindi & 55 others (Civil Application E314, E300 & E309 of 2023 & E296 of 2022 (Consolidated)) [2023] KECA 1475 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1475 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E314, E300 & E309 of 2023 & E296 of 2022 (Consolidated)

K M'Inoti, M Ngugi & F Tuiyott, JJA

December 8, 2023

Between

Attorney General

Applicant

and

Eliud Karanja Matindi

1st Respondent

Law Society of Kenya

2nd Respondent

Katiba Institute

3rd Respondent

Multy Touch International

4th Respondent

President of the Republic of Kenya

5th Respondent

National Assembly

6th Respondent

Salaries & Remuneration Commission

7th Respondent

Public Service Commission

8th Respondent

Controller of Budget

9th Respondent

Ann Wanjiku Mwangi

10th Respondent

Nicholas Ngabiya Rioba

11th Respondent

Edwin Sudi Wandabusi

12th Respondent

Sharif Athman Ali

13th Respondent

Issac Maigua Maura

14th Respondent

Rehema Hassan

15th Respondent

Samuel Kuntai Tunai

16th Respondent

Millicent Nyaboke Omanga

17th Respondent

Mohamud Ali Saleh

18th Respondent

Alfred Agoi Masadia

19th Respondent

Kirui Joseph Limo

20th Respondent

Beatrice Nkatha Nyaga

21st Respondent

Joash Arthur Maangi Gongera

22nd Respondent

Catherine Wanjiku Waruguru

23rd Respondent

Hussein Tuneya Dado

24th Respondent

Nancy Charity Nanyama Kibaba

25th Respondent

Wanjonya Benjamin Jomo Washiali

26th Respondent

Nicholas Gumbo

27th Respondent

Onesmus Kimani Ngunjiri

28th Respondent

Victor Kioko Munyaka

29th Respondent

Simon Mwangi Kamau Gikuru

30th Respondent

James Kimanthi Mbaluka

31st Respondent

Khatib Abdallah Mwashetani

32nd Respondent

Elly Stephen Loldepe

33rd Respondent

Mark Lomunokol

34th Respondent

Anab Mohamed Gure

35th Respondent

Jackson Kiptanui

36th Respondent

Daniel Wamahiu Kiongo

37th Respondent

Evans Odhiambo Kidero

38th Respondent

Vincent Kemosi Mogaka Paul

39th Respondent

Lelei Lilian Cheptoo Tomitom

40th Respondent

Margaret Wanjiru

41st Respondent

Amos Chege Mugo

42nd Respondent

Wesley Korir

43rd Respondent

Charles Nyagua Kanyi

44th Respondent

Jackline Mwenesi Lukalo

45th Respondent

Nyagah John Muchiri

46th Respondent

Wilson Sossion

47th Respondent

Rehema Dida Jaldesa

48th Respondent

Chrisantus Wamalwa Wakhungu

49th Respondent

Sunya Orre

50th Respondent

Mary Yaine Seneta

51st Respondent

John Lodepe Nakala

52nd Respondent

Elijah Gitobu Rintaugu

53rd Respondent

Mwanamaka Amani Mabruki

54th Respondent

Rael Chebichii Lelei

55th Respondent

David Kipkorir Kiplagat

56th Respondent

(Application for stay of execution pending the hearing and determination of an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Kimondo, Ong’undi & Visram, JJ.) dated 3rd July 2023 in Const. Pet. No. E080 of 2023 Consolidated with Const. Pet. Nos. E084 of 2023 and E150 of 2023 Petition E080, E084 & E150 of 2023 (Consolidated) )

Ruling

1. This ruling determines four consolidated applications for stay of execution of the Judgment and Decree of the High Court of Kenya at Nairobi (Kimondo. Ong’undi & Visram JJ.) dated 3rd July 2023. The four applications are Civil Application No. E314 of 2024, Attorney General V Eliud Karanja Matindi & 55 others; Civil Application No. E296 of 2022, Dennis Njue Itumbi v. Eliud Karanja Matindi & 58 others; Civil Application No. 300 of 2023, Ann Wanjku Mwangi & 45 others v. Eliud Karanja Matindi & 10 others; and Civil Application No. 309 of 2023, Wilson Sossion v. Eliud Karanja Matindi & 58 others.

2. When the four applications came up for hearing on October 16, 2023, the parties agreed, by consent, to consolidate them because they were between the same parties, arose from the same judgment of the High Court and raised the same issues. Accordingly, the Court consolidated the applications and directed that Civil Application No. E314 of 2023 would be the running file. Further, for orderly and efficient hearing of the consolidated applications, the Court directed that it would first hear the applicants in the four applications, followed by the respondents who supported the applications, and then those of the respondents who opposed the applications. The applicants in the four applications would then conclude with their replies.

3. All the applications seek stay of execution of the judgment and decree of the High Court dated July 3, 2023 pending the hearing and determination of intended appeals, some of which have already been filed in this Court. By the impugned judgment, the High Court declared the office of Chief Administrative Secretary (CAS) said to have been created vide Kenya Gazette Special Issue No. 12432 dated October 12, 2022 unconstitutional, null and void. Further, the court quashed the appointment of 50 of the respondents to that office. That declaration of unconstitutionality was based on the court’s finding that of the 50 appointments were made without public participation and that whereas there was some public participation in the earlier appointment of 23 of the respondents, those 23 offices had since been abolished by the Public Service Commission (PSC) on or about September 21, 2022.

4. To properly appreciate the issues in this application, it is apt to plot, albeit briefly, the rather intricate background to the applications, which goes back to the year 2018. On January 26, 2018, His Excellency the President of the Republic named nominees to the offices of Cabinet Secretaries and Principal Secretaries created respectively by Article 152(1) and Article 155 of the Constitution. Along with those nominations, the President also appointed 23 persons to the office of CAS. The creation of the office of CAS and the appointments thereto, was immediately challenged as ultra vires the Constitution and null and void in two petitions filed in the High Court by Okiya Omtata Okoiti (Pet. No. 33 of 2018) and the Kenya Human Rights Commission (Petition No. 42 of 2018). The petitioners also challenged the nominations to the offices of Cabinet Secretary and Principal Secretary, which issues are of no moment in the present applications.

5. After consolidating and hearing the two petitions, in a judgment dated 20th April 2021, the High Court (Mrima, J.) held that the establishment of the office of CAS was in violation of Articles 10, 47, 132(4)(a), 201(a), 232(1) and 234(2)(c) of the Constitution and sections 27 and 30 of the Public Service Act. The court accordingly, declared the office unconstitutional. However, that judgment was stayed by this Court pending appeal, in a ruling dated July 23, 2021 in Civil Application No. E131 of 2021. Subsequently, the Attorney General filed in this Court Civil Appeal No. E633 of 2022, Public Service Commission & 72 others v. Okiyah Omtata Okoiti & 4 others, against the judgment of Mrima, J. It is apt to point out at this juncture that by a notice dated December 22, 2022, the Attorney General withdrew Appeal No. E633 of 2022, with the effect that the said judgment of the High Court stood unchallenged.

6. Prior to that, thePSC had abolished the office ofCAS held by 23 appointees and decided to start the process of creating the office afresh. Apparently, this was to enable it comply with the stayed judgment of the High Court, which, among others, held that recruitment to the office of CAS had to be competitive, followed by nomination of the successful candidates, approval by the National Assembly, and appointment by the President. On September 19, 2022, the President of the Republic, through the Head of Public Service requested the PSC to establish the office of CASwithin the ranks of the Public Service. The request was made pursuant to Article 132(4) (a) of theConstitution. By a notice dated 21st September 2022, the PSCinvited members of the public to submit their views on the creation of the office of CAS.

7. Shortly thereafter, the Law Society of Kenya (LSK) moved the Employment & Labour Relations Court (ELRC) in Petition No. E 174 of 2022, Laws Society of Kenya v. Public Service Commission & 2 others, for a declaration that the advertisement for the creation of the office of CAS was in violation of Articles 10, 201(d), and 233(1) of the Constitution as well as section 27(1) of the Public Service Commission Act. The LSK contended, among other things, that the PSC’s notice lacked sufficient information to enable Kenyans make informed decisions on the establishment of the office and that the office of CAS would duplicate the roles of the Principal Secretary, in total violation of the principles of public finance.

8. The petition was heard by Mbaru, J., who, by a judgment dated February 16, 2023, held that the office of CAS was lawfully established. Thus, there emerged two diametrically opposed views on the constitutionality of the office of CAS, one espoused in the judgment of the High Court (Mrima. J.) which found the office to be unconstitutional, and the other, in the judgment of ELRC (Mbaru, J.) which found the office to be constitutional. The LSK did not appeal against the judgment of the ELRC.

9. As the litigation before the ELRC was going on, the PSC by a notice in the Kenya Gazette Notice No. 12432 of 12th October 2022, called for applications for appointment to the office of CAS. After conducting interviews, the PSC recommended to the President appointment of 50 persons, among them the 10th to the 56th respondents to this application, to the office of CAS. When the names of the nominees were forwarded to the National Assembly for vetting, the latter declined to undertake the exercise, asserting that there was no legal framework for the vetting. On March 23, 2023, the President appointed the nominees to the office of CAS vide Kenya Gazette Notice No. 3664 of even date. With those appointments, the initial compliment of 23CASs rose by a further 27 CASs to a total of 50.

10. Again, the appointments promptly provoked three petitions in the High Court, namely, Pet No. E80 of 2023, Pet. No E084 of 2023 and Pet. No. E150 of 2023. The petitioners once again challenged the constitutionality, as well as the process, through which the office of the CAS was created. They contended that the office could only be validly created by an Act of Parliament and that in any event, the creation of the office had placed an unreasonable financial burden on the public and was in violation of constitutional principles on prudent use of public resources. It was also contended that there was no public participation in the expansion of the office of CAS to 50 officers. The petitioners prayed for nullification of the office ofCAS and appointments thereto on account of alleged violation of Articles 2(2), 4(2), 10(2), 94,95,132(4), 232 (1) and (2) and 259(1) of the Constitution.

11. On March 23, 2023 the High Court issued conservatory orders, whose effect was to prohibit the persons appointed to the office of CAS from assuming office until the hearing and determination of the petitions. Those orders were confirmed vide a ruling dated 28th April 2023. The effect is therefore that since appointment, none of the appointees to the office of CAS has assumed the office.

12. The consolidated petitions were opposed by the various respondents thereto primarily on the basis that it was the ELRC rather than the High Court that had jurisdiction in the matter; that the petitions were res judicata in light of the decisions of Mrima J. and Mbaru, J.; that the petitions were premature and unjusticiable; and that the creation of the office of CASwas within the law and the Constitution.

13. The petitions were heard by an uneven bench empaneled by the Hon. the Chief Justice. By a majority judgment dated 3rd July 2023 which is the subject of the intended appeals, the High Court held that it had jurisdiction in the matter because the petitions raised weighty constitutional issues beyond employment matters. The court also found that some of the issues raised in the petitions were res judicata, among them whether the office of CAS is a State Office; whether legislation was required to underpin the recruitment process; the role of the National Assembly in the appointment process; and whether the President was bound by the recommendations of the PSCin the creation of an office in the public service. Accordingly, the court decided to eschew those issues.

14. Ultimately the court concluded that it was not bound by the decisions of Mrima, J. and Mbaru, J., being decisions of concurrent courts; that the order of stay of execution issued by this Court against the judgment of Mrima, J. did not have the effect of reversing the High Court declaration that the office of CAS was unconstitutional; that there was no adequate public participation in the creation of the 27 extra CAS offices, contrary to Articles 10 and 232 of the Constitution and section 27 of the Public Service Commission Act; that without approval of the National Assembly, the President and thePSCdid not have power to create the office of CASin the manner they had done; that the creation of the 50 CASoffices was at a substantial cost to the public; and that it was not the intendment of the framers of the Constitution to have 50 CASdeputising only 22 Cabinet Secretaries. The court therefore nullified the entire compliment of 50 CAS offices and the appointments thereto.

15. In her dissenting judgment, Ong’undi, J. held that the creation of the office of CAS was in line with the mandate of the PSC under Article 234(2)(a)(1) of the Constitution and that the regularisation of the office of CAS as proposed by the President and PSC could not be faulted. The learned judge concluded that whilst the appointment of the initial compliment of 23 CASs was lawful, that of the extra 27 was not, because it did not adhere to Articles 10 and 232 of the Constitution.

16. It is that judgment which provoked the intended appeals and the four applications for stay of execution pending the hearing and determination of the intended appeals. Due to obvious overlaps and duplication in the applications and the responses thereto, and to avoid tedium and repetition, we shall focus on the different strands of arguments that were made in support and opposition to the applications.

17. The learned Solicitor General, Mr. Mose, appearing with Mr. Bitta for the Attorney General, indicated that he had already filed the appeal and submitted that the appeal was arguable and stood very high chances of success. He identified some of the arguable issues to be placed before this Court to be whether the High Court erred in requiring the applicants to comply with the decision of Mrima, J. which had been stayed by this Court; whether the High Court unlawfully nullified the decision of a court of concurrent jurisdiction, namely, the decision of Mbaru, J. in the ELRC which held that the creation of the office of CAS was lawful; whether the High Court erred by determining issues that were pending before this Court; and whether the High Court determined issues that were not pleaded and granted remedies that were not sought by the petitioners. The Solicitor General, relied on the decision of this Court in Bellevue Development Co Ltd v Francis Gikonyo & 7 others [2018] eKLR and submitted that judges of concurrent jurisdiction have no supervisory jurisdiction over each other.

18. Turning to whether the intended appeals would be rendered nugatory if they succeeded in the absence of an order for stay of execution, the Solicitor General submitted that the creation of the 50 slots in the office of the CAS was based on needs assessment and was tied to the President’s term of office of five years. Failure to stay the impugned judgment will mean that the Government will lose the services of the CAS in the time-bound term; that the President’s constitutional prerogative and ability to realise his policies and honour his political contract with the electorate will be undermined; and that there was a risk that if the appeals were successful, the 50 CASs would be paid for work that they had not done. Conversely, if stay of execution were granted, the public will benefit from the services of the CASs who will equally earn their keep.

19. Next on the podium was Mr. Adrian Kamotho, learned counsel for Mr. Dennis Njue Itumbi, the applicant in Application No. E296 of 2023. Like the Attorney General, Mr. Kamotho indicated that he had already filed Civil Appeal No. E716 of 2023, which he submitted was eminently arguable in that the High Court erred by failing to hold that the consolidated petitions were res judicata, the issues raised therein having been conclusively determined by the ELRC without any appeal to a higher court; by purporting to sit on appeal from a decision of a court of competent and concurrent jurisdiction; by holding that the office of the CAS was created by Gazette Notice No. 12432 of 12th October 2022, whilst the said Notice merely declared vacancies; by holding that there was no adequate public participation as regards the appointment 27 CASs; by disregarding the ruling of this Court which stayed execution of Mrima, J.’s declaration of the office of CAS unconstitutional; by depriving the President the powers vested in him by Article 132(4) of the Constitution to establish public offices; and by condemning Mr. Dudley, one of the counsel who appeared for the parties in the consolidated petitions, without a hearing.

20. On why and how the appeal risked being rendered nugatory, counsel submitted that the judgment of the High Court infringes on the powers of the President to establish public office which negatively affects service delivery to the nation; that the CASs whose appointments were nullified stood to suffer irreparable injury because, upon appointment, they relinquished their former offices and positions; that the said CASs were suddenly thrust into a life of idleness and their losses cannot be adequately compensated by award of damages; and that the impugned judgment of the High Court had created a conundrum in light of the ELRC judgment, which conundrum exposed the President to allegations of contempt of court. In counsel’s view, the conundrum could only be resolved vide an order of stay of execution.

21. Next in line was Prof. Ojienda, SC, appearing with Mr. Somane, Ms. Omire, Ms. Daudi, and Mr. Hassan, for the applicants in Application No. E300 of 2023, who had been appointed to the office of CAS. Counsel informed the Court that he had already filed the appeal, which was arguable because it raised the issue of the jurisdictional conflict between the High Court and ELRC; the nature and extent of the powers of the President to make appointment to public office; and the sufficiency or otherwise of public participation in the creation of the office of CAS.

22. Other issues raised by these respondents in their written submissions, which were said to be arguable, were basically what we have already adverted to, namely, that the High Court erred by determining unpleaded issues and allowing introduction of issues through submissions, thus denying the respondents a fair hearing; by granting reliefs that had not been applied for; by determining matters pending before this Court; by sitting on appeal from a judgment of the ELRC and by relying on Mrima. J.’s judgment which had been stayed by this Court.

23. Turning to whether the appeal would be rendered nugatory, counsel submitted that at issue were fixed-term contracts which risked running out before the appeals were heard. Counsel submitted that the CASs contracts continued to run because the High Court did not quash the Gazette Notice appointing them. It was further contended that unless stay of execution was granted, the people of Kenya will be denied service delivery. On their part, the CASs will be deprived of the opportunity to render services and suffer prejudice by being prevented from earning salaries. In counsel’s view, if, on appeal, this Court confirmed that the CASs were in office unconstitutionally, they shall be able to refund their salaries. For now, it was submitted, the High Court had put their livelihoods in a state of limbo, a sort of purgatory, which was a violation of their constitutional right to employment. Counsel concluded by submitting that public interest tilted in favour of granting an order of stay of execution.

24. On his part, Mr. Somane, learned counsel for the same applicants, submitted that the orders issued by the High Court were not negative and were capable of being stayed. He added that the appeal was arguable on the further ground that although the High Court had found that the President had immunity from legal process, the court nevertheless issued orders against him. He contended that for that reason, there was a continuing breach of the Constitution which was not reversible and that the Court should arrest it though an order of stay of execution.

25. The application was also supported by Mr. Korir, learned counsel holding brief for Mr. Sigei for Mr. Wilson Sossion, the applicant in Application No. E309 of 2023. Mr Korir associated himself with the submissions by the Solicitor General, Mr Kamotho and Prof. Ojienda, and urged us to allow the application. He contended that unless we granted an order of stay of execution, the prejudice to the CASs was irreversible, their career paths will be prejudiced and the President will be hamstrung in the performance of his constitutional duties.

26. Mr. Arwa, learned counsel for the 28th respondent, Ms. Kyalo, learned counsel holding brief for Mr. Wanyama for the 17th and 39th respondent, Ms. Nyaberi, learned counsel for the National Assembly, and Mr. Ogoso, learned counsel for the Controller of Budget, all supported the application relying on similar arguments as those we have already set out above. They added that the Court should take into account the fact that it had earlier stayed execution of Mrima, J.’s judgment which had declared the office of CAS unconstitutional. They also relied on the decisions of this Court in Communications Authority of Kenya v Adrian Njenga & 10 others [2015] eKLR and Ben Chikamai & another v Peter Macithi Mungai & 2 others [2018] eKLR where this Court stayed decisions nullifying appointments to avoid serious ramifications for the institutions involved. Mr. Sitienei, learned counsel for the Salaries and Remuneration Commission elected to leave the matter to the Court.

27. The applications were strongly opposed by Mr. Matindi, the 1st respondent who appeared in person. He submitted that the intended appeals were not arguable because the High Court merely declared the law and therefore there was nothing to execute or stay. Relying on the decision of this Court in Attorney General v. Bala [2023] KECA 117 (KLR), Mr. Matindi submitted that a declaration merely states the court’s authoritative opinion without requiring the parties to do anything. He further submitted that the applicant’s contention that the High Court erred by determining issues pending before this Court and by ignoring the order of state of execution against Mrima. J.’s judgment had no substance because the Attorney General had already withdrawn his appeal, the basis on which the orders of stay of execution were granted. In his view, those issues were moot and cannot form the basis of an arguable appeal.

28. It was Mr. Matindi’s further contention that Mrima J.”s judgment was stayed because the 23 CASs had already assumed office, whereas in the present applications, the CASs had never assumed office because they were prohibited by the High Court from doing so through the conservatory orders. It was also his view that failure to grant stay of execution would not render the intended appeals nugatory because the CASs, having not assumed office could not suffer any prejudice. He added that the concerned respondents had no constitutional right to be appointed and to serve as CASs. He denied that the impugned judgment of the High Court had created any lacunae in public service delivery, arguing that service deliver was proceeding as before and there was no evidence that it was any worse. Mr Matindi concluded by submitting that the CASs, whose offices had been found to be unconstitutional by the High Court, should not be given an opportunity to make binding public policy decisions which cannot be undone if the appeals failed. He cited the decision of the Supreme Court in Dynes Muriithi v. Law Society of Kenya [2016] eKLR and submitted that granting stay of execution in the circumstances of this application would amount to allowing the appeal.

29. Ms. Kiunga, learned counsel for the Law Society of Kenya joined in opposing the applicants and agreed with Mr. Matindi that the judgment of the High Court was not capable of being stayed as it was declaratory in nature. She added that the appeals will not be rendered nugatory because the concerned respondents had not lost anything, nor had they demonstrated substantial loss. She concluded that if the office of CAS is on appeal confirmed to be unconstitutional, the damage occasioned to the public cannot be undone and that public interest superseded the CASs personal interest in jobs.

30. Lastly, we heard Mr. Dudley, learned counsel for Katiba Institute, who, with admirable candour that is rare these days, conceded upfront that the appeals were arguable. However, it was his view that the success of the appeals would not be negated if stay of execution was not granted because whatever loss or prejudice the applicants suffered, if any, could be adequately compensated by award of damages. Counsel added that the applicants’ contention that they were denied the right to employment was baseless because a public office is not the property of the office holder. In support of the contention, counsel cited the decision of this Court in Attorney General & another v. Andrew Kiplimo Sang Muge & 2 others [2017] eKLR.

31. Lastly, counsel submitted that in these applications, public interest superseded the applicant’s private financial interests. He contended that under Article 155 of the Constitution, each State Department was manned by a Principal Secretary and therefore, there was no basis for the contention that service delivery to the people of Kenya would suffer.

32. In their final replies, counsel for the applicants reiterated the arguments they had made, which it will serve no purpose to rehash.

33. If there is one thing in these contention applications that parties agree upon, it is the principles that should guide the Court in determining whether to grant or refuse the application for stay of execution, pending the hearing and determination of the applicants’ appeals. Without belabouring the points, the principles are basically as follows. Under rule 5(2) (b) of the Court of Appeal Rules, an applicant is entitled to an order of stay of execution, stay of proceedings, or injunction pending appeal if he has filed a notice of appeal. The applicant must also demonstrate that the intended appeal is arguable and that it will be rendered nugatory if it succeeds without interim relief. Both those considerations must be established to the satisfaction of the Court. (See Republic v. Kenya Anti- Corruption Commission & 2 Others [2009] KLR 31). Establishing only one will not entitle the applicant to relief. If the Court finds that an intended appeal is not arguable, it is unnecessary to proceed to the second stage and inquire into whether or not the appeal will be rendered nugatory. It is axiomatic that an appeal that is not arguable cannot be rendered nugatory. If the Court finds an arguable appeal established, it must move to the second stage and inquire whether the appeal risks being rendered nugatory. It is possible to establish an arguable appeal and still fail to establish that it will be rendered nugatory if it succeeds. The two considerations must coincide or cohere.

34. What then, is an arguable appeal? This Court has defined an arguable appeal as one that raises even a single bona fide issue that deserves full consideration by the Court. It is an appeal that is not frivolous. It is not necessary to raise a multiplicity of issues. A single genuine issue will suffice. And an arguable appeal is not necessarily one that must succeed when the appeal is heard. The fact that the Court ultimately dismisses an appeal does not mean that the appeal was not arguable in the first place. In determining whether or not the applicant has established an arguable appeal, the Court is not required to definitely determine the contested issues. It is required to undertake the exercise with great circumspection to avoid pre-empting the issues, which truly are the bailiwick of the full bench that hears the appeal. To that extent, the applicant needs only to demonstrate that prima facie, the appeal is not frivolous.

35. As regards the second consideration of whether the intended appeal will be rendered nugatory, the primary concern of the Court is to ensure that a successful appeal is not reduced to a mere pyrrhic victory or paper judgment (see Hashmuklal Virchand Shah & 2 Others v. Investment & Mortgage Bank Ltd [2014] eKLR). Whether or not an appeal will be rendered nugatory is determined on a case by case basis depending on the peculiar circumstances of the case. (See Reliance Bank Ltd v. Norlake Investments Ltd (2002) 1 EA 227). But ordinarily, the Court will grant relief under rule 5(2) (b) if what is apprehended cannot be undone once it happens or cannot be undone without undue hardship or expense, or cannot be adequately compensated by award of damages. The Court also takes into account the respective hardship that grant or refusal of relief is likely to wrought on the parties. (See Nation Media Group & 2 Others v. John Joseph Kamotho & 3 Others, Civil Application No. 108 of 2006). Where applicable, the public interest will also be a relevant consideration. In Gatirau Peter Munya V. Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court found that it was in public interest to avoid inordinate and extravagant use of public resources, pending the hearing and determination of an appeal. These principles are well articulated and elaborated in the decision of this Court in Stanley Kangethe Kinyanjui v. Tony Ketter & Others [2013] eKLR.

36. All the applicants have filed notices of appeal which gives them a firm foothold to invoke the rule 5(2) (b) jurisdiction of the Court. On the first consideration, we have no hesitation in holding that the applicants have satisfied us that their intended appeals are not frivolous. We perceive several bona fide arguable issues that they have flagged out, among them, whether there was adequate public participation in the creation of the office of CAS; whether the creation of that office required enactment of legislation and vetting by the National Assembly; which between the High Court and the ELRC had jurisdiction in this matter; whether the High Court was bound by its earlier judgement or that of the ELRC. The very fact that two courts of concurrent jurisdiction have reached different conclusions on at least one issue that is intended to be argued on appeal is evidence enough that the appeals are not frivolous.

37. Equally, we cannot shy away from stating that some of the identified grounds of appeal are clearly peripheral and frivolous. Among these is the alleged criticism by the High Court of Counsel Dudley, who did not appear to think it was an issue meriting an appeal. That issue, in any case, by and of itself cannot determine the central issue in the appeals, namely, the constitutionality or otherwise of the office of the CAS. Similarly, the contention that the High Court ignored the order of stay of execution issued by this Court, or determined issues that were pending before this Court are plainly frivolous in view of the uncontested fact that the Attorney General had long withdrawn Civil Appeal No. E633 of 2022 before the judgment of the High Court that is impugned in these applications. The order of stay of execution issued by this Court was premised on the withdrawn appeal and the issues before the Court emanated from that appeal. With its withdrawal before the judgment of the High Court, it cannot fall from the mouth of the Attorney General or the other applicants, to claim that the High Court ignored the orders or the issues before this Court. Be that as it may, there are several other bona fide issues that the applicants have raised, some of which we have identified, which entitle them to a finding that they have established an arguable appeal.

38. We have no doubt that the applications before us turn on whether the applicants have satisfied the Court that their appeals will be rendered nugatory. A consistent thread running through the applicants’ arguments on this limb of the application is that time is of the essence because the appointment of CASs is on time-bound contracts. It is also contended that the appointments are essential to service delivery to the public and are absolutely critical to honoring the President’s contract with the electorate and securing his legacy. The applicants also perceive the impugned judgment of the High Court as having unconstitutionally emasculated the powers of the President to create and make deserved appointments to public office. Lastly, it is also contended that at personal levels, the “dis-appointed” CASs will suffer irreparable loss, damage, and prejudice because they will, in the interregnum, be condemned to a Hobbesian “solitary, poor, nasty, brutish and short” life that invariably is the lot of those that are unemployed.

39. Although the applicants strongly hinge their case on the decision of the ELRC holding that the contested offices were lawfully created, it is equally true that there are two judgments of the High Court holding the exact opposite. Determination of those issues with finality must await the hearing of the appeals. All that we can say for now is that, after a full hearing rather than peremptorily, the High Court has, in the impugned judgment and an earlier judgment found violations of the Constitution proved. We are not persuaded that it is a sound and compelling argument that the appeals will be rendered nugatory because the people of Kenya will be deprived of public service. Since the promulgation of the Constitution of Kenya more than 10 years ago, public service has been rendered on the basis of the framework established by the Constitution before the creation of the contested offices. To displace that fact, the applicants need to place before the Court concrete evidence that the absence of the CASs is jeopardising service delivery to the public. The applicants have not demonstrated any cataclysmic or debilitating consequences that will suddenly befall the people of Kenya as they await determination of the appeals. Equally, we are not persuaded, at least in the immediate, that the collective destiny of the people of Kenya lies in the hands of 50 CASs whose offices are seriously contested.

40. If, for example, after hearing the appeals this Court finds that the offices were created constitutionally, there will be constitutional certainty and the applicants will assume office and start rendering service. If, on the other hand, the Court finds that the offices were created in violation of the Constitution, we cannot fathom how the public can be compensated or how it can be comforting to tell the people of Kenya that, after all, service has been rendered to you, never mind it is service in violation of the Constitution. Where purported service is rendered in violation of the Constitution, it does not require rocket science to fathom that it is not legitimate service beneficial to the public. Service rendered in violation of the Constitution is no service at all in the eyes of the law.

41. Nor are we able to decipher any personal loss or damage that the applicants will suffer that is incapable of being adequately compensated, subject, of course, to this rider: we do not see how failure to assume a public office pursuant to a court order can form the basis of a legitimate claim for compensation for the period no work has been rendered. As the Supreme Court aptly observed in Gateau Peter Munya v. Dickson Kithinji Mwenda & 2 others (supra), these kind of issues cannot be reduced to “private-interest matters”, because ultimately, the public interest looms larger still.

42. Taking all the foregoing into accounts, we are not persuaded that the applicants have satisfied us that their appeals will be rendered nugatory, if we do not stay execution of the impugned judgment of the High Court. Having failed to satisfy both limbs under rule 5(2) (b) of the Court of Appeal Rules, this application fails and is dismissed, with costs, to those of the respondents in the four applications who appeared and opposed the applications. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023,K. M’INOTI...................................JUDGE OF APPEALMUMBI NGUGI...................................JUDGE OF APPEALF. TUIYOTT...................................JUDGE OF APPEALI certify that this is a true copy of the originalSIGNEDDEPUTY REGISTRAR