https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1325

Abdikarim v Adan & 4 others (Civil Appeal (Application) E582 of 2025) [2026] KECA 1325 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1325 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E582 of 2025 SG Kairu, M Ngugi & F Tuiyott, JJA July 10, 2026 Between Jibril Adan Abdikarim Applicant and Abdi Ahmed Adan 1st Respondent Ministry of Interior and National Administration 2nd Respondent The Hon. Attorney General 3rd Respondent The office of the County Commissioner, Wajir 4th Respondent The Office of the Sub-County Commissioner, Wajir 5th Respondent (An application for stay of execution pending the hearing and determination of an appeal from the Ruling of the Employment and Labour Relations Court of Kenya at Nairobi (H. Wasilwa, J.) dated 23rd September 2025 in ELRC Petition No. E077 of 2025) Ruling 1.This ruling relates to an application dated 26th September 2025 in which the appellant/applicant, Jibril Adan Abdikarim, seeks an order for temporary injunction to restrain the respondents from advertising, recruiting or filling the position of Assistant Chief II for Hadado South, Sub-Location in Ademasajida Division in Wajir County. He also seeks an order of stay of execution of the ruling of the Employment and Labour Relations Court (ELRC) (Wasilwa, J.) delivered on 23rd September 2025 pending the hearing and determination of the appeal. 2.Following a vacancy in the post of Assistant Chief II for Hadado South, Sub-Location in Ademasajida Division in Wajir County, The Office of the President Ministry of Interior and National Administration advertised the vacancy and invited applications from suitably qualified candidates to fill the vacancy. One of the requirements, amongst many others, was that the candidate “be not less than thirty (30) years of age.” Interviews were conducted on at least three occasions, and the applicant, Jibril Adan Abdikarim, was among those interviewed. Ultimately, the applicant was on 2nd April 2025 appointed as the Assistant Chief of Hadado South Sub-Location. 3.Abdi Ahmed Adan, the 1st respondent had also applied for the same position, was interviewed and was well ranked emerging amongst the top two contenders for the position. He challenged the process of, as well as the appointment of the applicant on grounds that the applicant had not attained the age of 30 years, a requirement per the advertisement. He complained that in the process leading to the appointment of the applicant, there was nepotism and discrimination. The 1st respondent petitioned the ELRC seeking among other reliefs, an order to quash the appointment of the applicant; a declaration that the failure to appoint him violated his legitimate expectation and is unconstitutional; an order directing a fresh recruitment; and damages for violation of his constitutional rights. Within the petition he applied, by an application dated 28th April 2025, for conservatory orders to restrain the 2nd to 4th respondents from effecting the appointment. 4.In the ruling delivered on 23rd September 2025, the subject of the present application for stay of execution, the ELRC nullified the appointment of the applicant as Assistant Chief II for Hadado South, Sub-Location in Ademasajida Division; directed that there be a fresh recruitment for the position; and awarded the 1st respondent Kshs. 500,000.00 as damages for violation of his rights. 5.On 24th November 2025, we heard learned counsel, Mr. Fred Athouk, who appeared with Mr. Enock Namude for the applicant, and learned counsel, Miss. Okoth, who appeared for the 1st respondent. There was no appearance for the 2nd to 5th respondents despite notice of hearing of the application having been served. 6.We have considered the application, the applicant’s supporting affidavit, the 1st respondent’s replying affidavit and the rival submissions, written and the oral highlights thereof, against the principles applicable in applications of this nature. (See Multimedia University & Another vs. GNN (Civil Application 225 of 2013) [2014]KECA 850 (KLR); Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR); Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Limited & 2 others, Civil Application No. 124 of 2008 [2009] KECA 201 (KLR). 7.As to whether the intended appeal is arguable, and although the 1st respondent argues that the application is an abuse of the court process, based on the memorandum of appeal there are questions that merit appellate consideration, for instance, whether, as contended, age can, without a statutory basis, be a lawful ground for nullifying a public appointment. One arguable point suffices. We are persuaded that the appeal is not frivolous. It is arguable. 8.On the nugatory aspect, counsel for the applicant argued that unless the orders sought are granted, the impugned ruling will be implemented, the position be re-advertised and filled, and the applicant will suffer irreparable loss. Counsel for the respondent on the other hand submitted that allowing the present application would have the effect of allowing the applicant to occupy the office and should the decision of the ELRC ultimately be upheld by this Court, all decisions the applicant will have made during the pendency of the appeal would require undoing. 9.In Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others the Court stated that whether an appeal will be rendered nugatory depends on whether 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. On our part, we note that the salary scale attached to the post was indicated in the advertisement and the loss the applicant would have suffered, should the appeal ultimately succeed, is easily quantifiable and reparable. In arriving at this conclusion, we must observe that the applicant did not assert that to grant stay, in respect to this public office, would be in the public interest. He restricted himself to an apprehension of a personal loss. 10.In the result, we are not satisfied that the applicant has demonstrated that the appeal will be rendered nugatory should we decline to grant the prayers sought. Consequently, the application dated 26th September 2025 fails and is hereby dismissed. 11.Given that the applicant’s bid is an endeavor to serve the public, we make no orders as to the costs of the application. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.*S. GATEMBU KAIRU, FCIArb, CArb.……………………………………JUDGE OF APPEALMUMBI NGUGI……………………………………JUDGE OF APPEALF. TUIYOTT……………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.