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Court of AppealDismissedCivil Application (Notice of Motion dated 1st July 2024), Milimani MCELRC/E770/2020 appeal

Master Fabricators Limited v Nyamoko & 11 others (Civil Application E326 of 2024) [2025] KECA 307 (KLR)

Court of Appeal of Kenya
21 February 2025
545 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause an employment judgment because the order required the company to stop acting, not to pay anything, making a stay legally impossible.

What this practically means

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Executive summary

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This was a single-judge-bench application... wait, correct text: This was an application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking stay of execution of the judgment/decree of the Employment and Labour Relations Court (Mathews Nderi Nduma, J.) delivered on 6th June 2024, which had dismissed Master Fabricators Limited's appeal against a finding that it unfairly terminated twelve respondents' contracts of employment and owed them terminal dues of about Kshs.10,000,000. The applicant argued, in substance, that the respondents were independent contractors and that the intended appeal was arguable; it further deponed to substantial loss because the decretal sums would be unrecoverable and its finances were strained. The respondents, through the 1st respondent's affidavit, maintained that the decree was a negative order incapable of execution. At the hearing neither counsel appeared, both having filed written submissions. The Court of Appeal (Gatembu Kairu, Muchelule and Korir, JJ.A) agreed that the decree was in the nature of a refrain from doing anything, incapable of execution save as to costs, and that a stay order cannot issue in respect of a negative order, applying Executive Estates Limited, Charles Gichina Mwangi and Western College of Arts & Applied Sciences. The application was found not merited and dismissed with costs. The intended appeal on the employment-contractor question remains pending.

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 applicant would suffer substantial loss if stay of execution is not granted
  3. 3.Whether a stay of execution can issue in respect of a negative decree that does not require anything to be done by the decree-holder

Key legal issues

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01

Whether stay of execution may be granted where the decree is a negative order

Holding

No. The judgment/decree of the superior court was in the nature of a refrain from doing anything and was incapable of execution except in regard to costs; a stay order cannot issue in respect of such an order, so the application under Rule 5(2)(b) fails.

Reasoning

The court accepted the respondents' submission that the decree required no positive act by the applicant against which execution could be stayed. Following its own precedents (Executive Estates, Charles Gichina Mwangi, Western College), the court held that stay is unavailable for negative orders, and that the intended appeal's arguability could not cure this fatal deficiency.

p. 2
02

Whether the applicant satisfied the Rule 5(2)(b) thresholds of an arguable appeal and substantial loss

Holding

The application was found not merited. Although the applicant deponed to an arguable appeal and substantial loss arising from the approximately Kshs.10,000,000 payable and the difficulty of recovery from the respondents, the decisive disqualifying factor was the nature of the decree as a negative order.

Reasoning

The applicant's grounds - that respondents were independent contractors rather than employees and that the contracts were contracts for service - were not independently assessed because the court disposed of the application on the negative-order point. The deponed substantial-loss factors were thus not reached in a substantive merits analysis.

p. 2

Legal principles established

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  • A stay of execution cannot issue in respect of a negative decree - an order in the nature of a refrain from doing anything - since such an order is incapable of execution except as regards costs.

Court orders

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  1. 1.Dismissal of the notice of motion dated 1st July 2024 seeking stay of execution of the whole judgment/decree of the ELRC pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to the respondents

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court
Milimani MCELRC/E770/2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the whole judgment/decree of the ELRC pending the hearing and determination of the intended appeal

The decree of the superior court was in the nature of a negative order (refrain from doing anything) incapable of execution except as to costs, and stay cannot issue in respect of such an order

p. 2

Costs

The application was dismissed with costs to the respondents.

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.

We must agree with the respondents that the judgment/decree of the superior court was in the nature of refrain from doing anything. The order was incapable of execution, except in regard to costs.
p. 2Negative decree incapable of execution
This Court has variously held that a stay order cannot be issued in respect of such an order.
p. 2Stay not available for negative orders
That being the case, we find the application not merited, and dismiss it with costs.
p. 2Final orders - dismissal of the Rule 5(2)(b) application

Issues in the judgment

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minor

The judgment does not state the Court of Appeal appeal number or a neutral citation for this application; only the subordinate ELRC cause number (Milimani MCELRC/E770/2020) is given.

minor

The judgment refers to the trial judge inconsistently as 'Mathews Nderi Nduma' and 'Matthew Nderi Nduma' within the same judgment.

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, "Master Fabricators Limited v Nyamoko & 11 others (Civil Application E326 of 2024) [2025] KECA 307 (KLR)", Case Analysis (2025). Civil Application (Notice of Motion dated 1st July 2024), Milimani MCELRC/E770/2020 appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/307/eng@2025-02-21

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