Master Fabricators Limited v Nyamoko & 11 others (Civil Application E326 of 2024) [2025] KECA 307 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal
- 2.Whether the applicant would suffer substantial loss if stay of execution is not granted
- 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
#Whether stay of execution may be granted where the decree is a negative order
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.
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.
Whether the applicant satisfied the Rule 5(2)(b) thresholds of an arguable appeal and substantial loss
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The application was dismissed with costs to the respondents.
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.
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.
This Court has variously held that a stay order cannot be issued in respect of such an order.
That being the case, we find the application not merited, and dismiss it with costs.
Issues in the judgment
#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.
The judgment refers to the trial judge inconsistently as 'Mathews Nderi Nduma' and 'Matthew Nderi Nduma' within the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.