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Court of AppealDismissedCivil Application (Eldoret) - application dated 10th February 2025 in intended appeal from Eldoret ELRC Appeal No. E018 of 2022

Kerio Valley Development Authority v Ruto (Civil Appeal (Application) E012 of 2025) [2025] KECA 858 (KLR)

Court of Appeal of Kenya
16 May 2025
1,976 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause payment of the money owed to a former KVDA employee because it was satisfied he could repay if the appeal later succeeded.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nakuru (Mativo, Gachoka and Korir, JJ.A) determines an application dated 10th February 2025 by Kerio Valley Development Authority under Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of a money decree arising from an employment dispute. The respondent, a former Senior Driver employed from 1988, accepted a voluntary early retirement offer of Kshs.765,183.94, which was reduced to Kshs.235,287.94 by a consent order of 8th June 2018 in a suit by the union, to which the respondent was not party. The Chief Magistrate's Employment and Labour Relations Court awarded him Kshs.511,895.57, and Onyango, J upheld that judgment on appeal. The applicant argued its intended appeal was arguable - particularly that the ELRC judge impermissibly reviewed the consent order without a review application - and that execution would render the appeal nugatory because the respondent could not repay. The Court found the consent-order ground arguable but held the nugatory limb failed: the respondent had stated he was a man of means, working 30 years and farming commercially, and the applicant did not rebut this, making its fear speculative. Since both Rule 5(2)(b) limbs must be satisfied, the application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable under the first limb of Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted under the second limb

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found one ground arguable - whether the ELRC judge erred in reviewing the terms of the consent order of 8th June 2018 when no application for review was before it - without making final findings.

Reasoning

The Court applied the Kang'ethe Kinyanjui test that an arguable appeal need not necessarily succeed but must not be frivolous and ought to be argued fully. It declined to make definitive findings on the merits, holding that the consent-order review ground was a matter for the appeal bench.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

The second limb failed. This is a money decree and the respondent, a commercial maize and wheat farmer who worked 30 years, is a man of means able to repay; the applicant's failure to rebut this made its apprehension speculative.

Reasoning

Following Kenya Hotel Properties and National Industrial Credit Bank, money decrees are normally not nugatory if the respondent can repay. The respondent asserted means; the applicant did not rebut that contention, so the evidential burden it invited the Court to shift was not discharged, and its fear of recovery difficulty was purely speculative.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay is refused; satisfying only one limb is insufficient.
  • Where a money decree is involved, the success of an appeal is not rendered nugatory provided the respondent is able to repay the decretal amount, subject to riders against undue hardship.
  • Once an applicant expresses a reasonable fear that a respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show his resources.

Court orders

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  1. 1.The application dated 10th February 2025 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
Eldoret Employment and Labour Relations Court
Eldoret ELRC Appeal No. E018 of 2022
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1, 5(2)(b), 41 & 47 of the Court of Appeal Rules, 2022

Relief refused

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

The applicant failed to satisfy the second limb - that the appeal would be rendered nugatory - as the respondent demonstrated he is a man of means capable of repaying the decretal sum, and both limbs must be proved

Costs

Application dismissed with costs to the respondent

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.

Accordingly, the application dated 10th February 2025 is unmerited. It is dismissed with costs to the respondent.
p. 4Final orders - dismissal of stay application
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
p. 3Rule 5(2)(b) twin principles
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
p. 3Definition of arguable appeal
the allegation of considerable dificulty in recovering the decretal sum if the decree is satisfied is purely speculative.
p. 4Nugatory limb - speculative fear insufficient

Issues in the judgment

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minor

Internal inconsistency in the date of the draft memorandum of appeal: the affidavit and application are dated 10th February 2025 and paragraph 13 refers to a draft memorandum 'dated 18th February 2024', a date earlier than the litigation events described

minor

The respondent is inconsistently described: the heading refers to an 'application dated 10th February 2025, the subject of this ruling' while paragraph 5 describes the applicant before the Court as seeking stay, and the roles of 'applicant' and 'appellant' are used interchangeably

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kerio Valley Development Authority v Ruto (Civil Appeal (Application) E012 of 2025) [2025] KECA 858 (KLR)", Case Analysis (2025). Civil Application (Eldoret) - application dated 10th February 2025 in intended appeal from Eldoret ELRC Appeal No. E018 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/858/eng@2025-05-16

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