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Court of AppealAllowedCivil Application (Stay) arising from Eldoret Appeal No. E021 of 2023

Kerio Valley Development Authority v Kibogy (Civil Application E055 of 2023) [2024] KECA 915 (KLR)

Court of Appeal
26 July 2024
FSF. SICHALEFOF. OCHIENGWKW. KORIR
1,989 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped execution of a Kshs 1.2 million employment award against Kerio Valley Development Authority because the employee gave no evidence she could refund the money if the appeal succeeded.

What this practically means

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Executive summary

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This is a single Judge-rules application before the Court of Appeal at Nakuru in which Kerio Valley Development Authority sought a stay of the whole judgment of the Employment and Labour Relations Court at Eldoret (M. Onyango J, 21st September 2023), which had reversed the dismissal by the Chief Magistrate's Court of Rose Chepkoech Kibogy's claim and awarded her Kshs 1,232,780.12. The dispute arose from a voluntary early retirement programme, a subsequent consent order negotiated after the Kenya Planters Agricultural Workers Union challenged the remuneration criterion, and the ELRC judge's finding that the respondent, not being a unionisable employee, was not bound by the consent order. The applicant moved under Rule 5(2)(b) arguing estoppel and unionisable status as arguable grounds, and asserting that the respondent could not refund the decretal amount if the appeal succeeded. The respondent countered that the appeal was not arguable, that execution is lawful and not irreparable loss, and that her farming income enabled her to refund. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found a single bona fide arguable ground sufficed, held the estoppel and unionisable-status issues non-frivolous, and found the respondent's refundability averments unsupported by any evidence, satisfying both limbs. The motion was allowed, execution stayed pending the intended appeal, with costs of the motion to abide the appeal's outcome. The decision below was not disturbed at this interlocutory stage.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether the intended appeal would be rendered nugatory unless an order of stay of execution is granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The draft memorandum raised non-frivolous issues on estoppel and unionisable status warranting full consideration.

Reasoning

The Court examined the Draft Memorandum of Appeal and identified two grounds - the doctrine of estoppel and whether the respondent was a unionisable employee bound by the consent order - as not frivolous and worthy of full consideration. Mindful that an arguable appeal need not necessarily succeed, it declined to make definitive findings to avoid embarrassing the bench seized of the main appeal, and found the first limb satisfied.

p. 4
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The monetary decree was not shown to be reversible since the respondent's refundability averments were unsupported by evidence.

Reasoning

Although the decree was monetary, the respondent's bare averments that she had invested in commercial maize and wheat farming and could refund the decretal amount were unsupported by any evidence. Given her former highest-cadre salary, the Court was satisfied that execution without stay would render the appeal nugatory, satisfying the second limb of the Rule 5(2)(b) test.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • A single bona fide arguable ground suffices, and the appeal need not be one that must necessarily succeed.
  • A monetary decree may render an appeal nugatory where the respondent's ability to refund is unsupported by evidence.

Court orders

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  1. 1.Stay of the whole of the judgment of the Employment and Labour Relations Court at Eldoret in Appeal No. E021 delivered on 21st September 2023 pending the hearing and determination of the intended appeal
  2. 2.Costs of the motion to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FS
majority
FO
majority
WK
majority
On appeal from
Employment and Labour Relations Court, Eldoret
Eldoret Appeal No. E021 of 2023
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1, 5(2)(b), 41 and 47 of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An applicant has to satisfy the Court on both limbs.
p. 3Rule 5(2)(b) twin principles
we are satisfied that the applicant has an arguable appeal
p. 4First limb - arguability
we are satisfied that the intended appeal will be rendered nugatory if an order of stay is not granted
p. 4Second limb - nugatory appeal
The costs of this motion shall abide the outcome of the intended appeal.
p. 4Final orders - costs
This Honourable Court be pleased to stay the whole of the judgment in the Employment and Labour Relations Court at Eldoret Appeal No. E021 between Rose Chepkoech Kibogy and Kerio Valley Development Authority delivered on 21st September 2023 pending the hearing and determination of the intended appeal.
p. 1Final orders - stay granted

Issues in the judgment

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minor

The replying affidavit date is stated inconsistently - once as 8th November 2023 and later as 18th October 2023

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kerio Valley Development Authority v Kibogy (Civil Application E055 of 2023) [2024] KECA 915 (KLR)", Case Analysis (2024). Civil Application (Stay) arising from Eldoret Appeal No. E021 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/915/eng@2024-07-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.