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Court of AppealDismissedCivil Application No. E00X of 2024 (Nairobi) - application dated 24th May 2024· [2024] KECA 1810 (KLR)

The County Government of Kisii & 2 others v Kenya County Government Workers Union

Court of Appeal
20 December 2024
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to halt a Kshs. 217 million judgment against Kisii County, ruling that money judgments are rarely stopped when the recipient can repay.

What this practically means

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Executive summary

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The applicants, being the County Government of Kisii, Kisii County Public Service Board and the County Secretary, sought a stay of execution under rule 5(2)(b) of the Court of Appeal Rules of the judgment and decree of the Employment and Labour Relations Court in Cause No. E007 of 2021 delivered on 24th November 2022, as amplified by a ruling of 18th April 2024, directing payment to the Kenya County Government Workers Union of Kshs. 217,317,562.00 in unpaid staff emoluments owed to employees of defunct local authorities within the former Kisii District. The applicants contended the intended appeal was arguable because the ELRC disregarded their verified records showing Kshs. 35,645,062.00, acted while functus officio, and that the union could not refund the decretal sum if the appeal succeeded. The respondent opposed, asserting the debt was verified, the applicants were estopped, and the intended appeal was not arguable. Applying the twin test from Trust Bank v. Investech Bank, the Court held the appeal arguable on the computation of emoluments but found the nugatory limb unsatisfied: this was a money decree which, per Kenya Shell v. Kibiru, is rarely stayed, and the applicants provided no evidence that the union, funded by members' subscriptions, could not refund. The application was dismissed with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found at least one bona fide arguable ground, particularly regarding the computation of the emoluments awarded.

Reasoning

Applying the Stanley Kangethe Kinyanjui test, the Court examined the grounds in the motion and draft memorandum of appeal. It found the appeal arguable, particularly on the computation of emoluments, since the ELRC disregarded the applicants' verified list of Kshs. 35,645,062.00 and awarded Kshs. 217,317,562.00.

p. 3
02

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

Holding

The applicants failed the nugatory limb; this being a money decree, no evidence showed the respondent could not refund, and the decretal amount could be adequately compensated by damages.

Reasoning

The Court noted the money decree principle from Kenya Shell v. Kibiru that execution of money decrees is rarely stayed. The union has financial muscle from members' monthly subscriptions. The applicants offered no evidence of inability to refund, so failure to stay would not render the appeal nugatory.

p. 3

Legal principles established

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  • An application for stay under rule 5(2)(b) must satisfy both limbs - the appeal must be arguable and, if successful, would be rendered nugatory absent a stay.
  • Execution of money decrees is rarely stayed; the applicant must show the respondent would be unable to refund the decretal amount if the appeal succeeds.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserves full argument.

Court orders

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  1. 1.The application dated 24th May 2024 is dismissed
  2. 2.Costs shall abide the outcome of the intended appeal
On appeal from
Employment and Labour Relations Court
Cause No. E007 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "The County Government of Kisii & 2 others v Kenya County Government Workers Union", Case Analysis (2024). Civil Application No. E00X of 2024 (Nairobi) - application dated 24th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1810/eng@2024-12-20

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