Said v Bliss Healthcare Limited (Civil Application E706 of 2024) [2025] KECA 284 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop costs after a dismissed pregnancy-discrimination suit, holding that unassessed costs cannot be stayed pending appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal is arguable
- 2.Whether, if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory
Key legal issues
#Whether stay of execution of unassessed costs can be granted under rule 5(2)(b)
No. The substratum of the appeal is the alleged discrimination, not costs; execution for unassessed costs would not render the appeal nugatory.
The court distinguished the substratum of the appeal from the incidental issue of costs. Even assuming arguability, the second limb of the rule 5(2)(b) test was not satisfied because execution for costs, whether assessed or not, would have no bearing on the appeal's determination. The dismissal of the suit was itself a negative order incapable of being stayed.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- A negative order, such as dismissal of a suit, is not capable of being stayed; and unassessed, undemanded costs provide no substratum to preserve under rule 5(2)(b).
- Where execution for unassessed costs cannot render the appeal nugatory, the nugatory limb fails even if the appeal is arguable, and the application must be dismissed.
- Rule 5(2)(b) is a preservation jurisdiction that safeguards the substratum of an appeal, not a tool for pre-empting execution on costs.
Court orders
#- 1.The application dated 11th December 2024 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC)
- Memorandum of claim dated 19th July 2022
- Jurisdiction invoked
- Rules 5(2)(b) and 41 of the Court of Appeal Rules, 2010, deriving from Article 164(3) of the Constitution
Relief refused
#Stay of execution of costs from the judgment dated 28th November 2024 and of all consequential orders
The trial court's dismissal of the suit was a negative order incapable of being stayed; the only thing sought to be stayed was unassessed, undemanded costs, and execution for costs would have no bearing on the appeal
Costs
The application is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In exercising its discretion under the rule, the Court must be satisfied, first, that the applicant's appeal is arguable and, secondly, that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory
There is therefore no order capable of being stayed. But she does not ask us to stay the order of the Court. She asks us to stay costs that are yet to be assessed or demanded.
Accordingly, we find that there is no merit in the application dated 11th December 2024, and it is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Bliss Healthcare Limited (Civil Application E706 of 2024) [2025] KECA 284 (KLR)", Case Analysis (2025). Application dated 11th December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/284/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.