Lodging a notice of appeal in the Court of Appeal does not automatically stop (stay) the execution of the judgement of the High Court.

The Court of Appeal in Civil Appeal (Application) No.E131 of 2021, The Public Service Commission & 72 Others v Okiya Omtatah & 4 Others considered an application to stay the execution of orders issued by the High Court in Okiya Omtatah & Another v The Public Service Commission & 73 Others; Law Society of Kenya & Another (interested parties) 2021 eKLR that:

• Declared unconstitutional the office of Chief Administrative Secretary as currently constituted.
• Cabinet Secretaries who served during the first term of H.E. President Kenyatta must be vetted by the National Assembly before serving during his second term.
• Any serving Principal Secretary who was not either shortlisted, interviewed, recommended for nomination by the Public Service Commission to the President or approved by the National

Assembly is in office in contravention of the Constitution and the law.

The court ruled that for an application of stay of execution to succeed, an appellant must demonstrate that the intended appeal is arguable and will be rendered nugatory (redundant) if the stay is not granted. In other words, the intended appeal:

• Must not be frivolous; and
• Must raise at least one bona fide (i.e. genuine) issue that can be argued before the court.

Whether an appeal will be rendered nugatory if a stay is not granted depends on if:

• what is sought to be stayed is reversible;
• any damage to the aggrieved party can be reasonably compensated by damages; or
• it is in the public interest to grant a stay.

Our team led by Kiragu Kimani SC, assisted by James Tugee (Senior Associate) represented the Public Service Commission and the Office of the Attorney General alongside Charles Mutinda and Emmanuel Bitta of the State Law Office in obtaining orders of stay of execution pending the determination of the appeal.