Case ID:166609

Cabinet Secretary, Ministry of Health & 2 others v Hezekiah Chepkwony [2020] eKLR

Case Metadata

Case Number:

Civil Appeal (Application) 107 of 2020

Parties:

Cabinet Secretary, Ministry of Health, Principal Secretary Ministry of Health & Attorney General v Hezekiah Chepkwony

Date Delivered:

20 Nov 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Roselyn Naliaka Nambuye, Hannah Magondi Okwengu, Jamila Mohammed

Citation:

Cabinet Secretary, Ministry of Health & 2 others v Hezekiah Chepkwony [2020] eKLR

Case History:

(Being an application seeking stay of execution of the Ruling and orders of the Employment and Labour Relations Court of Kenya (Hon. Onesmus Makau, J.) dated 9th July, 2020 in Nairobi in Nairobi ELRC Petition No. 124 of 2019)

Court Division:

Civil

County:

Nairobi

History Docket No:

Petition No. 124 of 2019)

History Judges:

Onesmus Ndumbuthi Makau

History County:

Nairobi

Case Outcome:

Application allowedf

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, OKWENGU, J. MOHAMMED JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 107 OF 2020

BETWEEN

CABINET SECRETARY,

MINISTRY OF HEALTH..................................................................1

ST

APPLICANT

PRINCIPAL SECRETARY

MINISTRY OF HEALTH................................................................2

ND

APPLICANT

HON. ATTORNEY GENERAL......................................................3

RD

APPLICANT

AND

DR. HEZEKIAH CHEPKWONY................................................1

ST

RESPONDENT

(Being an application seeking stay of execution of the Ruling and orders of the Employment and Labour Relations Court of Kenya (Hon. Onesmus Makau, J.) dated 9

th

July, 2020

in

Nairobi ELRC Petition No. 124 of 2019)

*********************

RULING OF THE COURT

1.

UPON

perusing the Notice of Motion dated 16th July 2020 seeking an interim order staying execution of the decision and orders of the Employment and Labour Relations Court delivered by

Hon. Mr. Justice Onesmus Makau

on 9th July, 2020; in

Nairobi Petition No. 124 of 2019 Dr. Hezekiah

Chepkwony & 2 Others vs. CS Ministry of Health & 2 Others

pending hearing and determination of the appeal; an order staying further proceedings in

Nairobi Petition No. 124 of 2019 Dr. Hezekiah Chepkwony

& 2 Others vs CS Ministry of Health & 2 Others

; pending the hearing and determination of the appeal; an order that costs of the application be in the cause among other prayers; and

2.

UPON

reading the grounds on the body of the application, a supporting affidavit of

Mutai Kagwe

together with annexures thereto; and

3.

UPON

reading the 1st and 2nd respondents Replying Affidavit sworn by

Dr. Pius Wanjala

; together with annexures thereto; and

4.

UPON

appraising the 1st and 2nd Respondents written submissions dated 18th August 2020 together with legal authorities, relied upon in support of their opposition to the application; and

5.

HAVING

considered the totality of the above on 28th September 2020 when the application came before us for hearing and granted an interim order of stay of execution of the decision and orders of the Employment and Labour Relations Court delivered by

Hon. Mr. Justice Onesmus Makau

on

9

th

July, 2020

in

Nairobi Petition No. 124 of 2019

as prayed for in

prayer (b)

of the application pending delivery of ruling on

20

th

November, 2020

; an Interim order of stay of proceedings in

Petition No. 124 of 2019

as prayed for in

prayer (c

) of the application pending delivery of the ruling on 20th November, 2020; and that costs of the application to abide the outcome of the ruling; and

6.

HAVING

considered the totality of the above in light of the principles that guide this court in determining applications under

rule 5(2)(b)

of this Court’s Rules as summarized in

Stanley Kangethe vs. Tony Ketter &

Others [2013] eKLR

, and which we fully adopt; and

7.

HAVING

applied the threshold therein to the rival positions herein with regard to demonstration of satisfaction of the first prerequisite under the above rule in light of the content of the Memorandum of Appeal contained in the record of appeal on which the application under consideration has been anchored, we are satisfied that the appeal pending is arguable notwithstanding that it may not ultimately succeed; and

8.

HAVING

applied the same threshold with regard to the demonstration of satisfaction of the second prerequisite of the twin principle, we are satisfied that this prerequisite has also been satisfied, reason being that action threatened against the Applicants is Civil Jail for alleged contempt of Court orders which in our view once executed is irreversible; and

9.

HAVING

reached the above conclusion, we make orders as follows;

(i) The application dated 16

th

July, 2020 is allowed as prayed for in prayers (b) and (c) of the application.

(ii) Costs of the application to abide the outcome of the Appeal.

Dated and Delivered at Nairobi this 20

th

day of November, 2020.

R. N. NAMBUYE

.................................................

JUDGE OF APPEAL

HANNAH OKWENGU

......................................................

JUDGE OF APPEAL

J. MOHAMMED

........................................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR