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Court of AppealAllowedCivil Application (Nyeri) - Rule 5(2)(b) application arising from Meru ELRC Cause No. E008 of 2023 consolidated with Meru Cause No. E012 of 2023· [2025] KECA 1092 (KLR)

The Attorney General v Isabella Kuria Kunga & 1 other

Court of Appeal of Kenya
5 June 2025
1,221 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal halted payment of Kshs.1.35 million in employment awards because the winning employees couldn't prove they could refund the money if the school's appeal succeeded.

What this practically means

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Executive summary

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The Attorney General, on behalf of Munithu Girls Secondary School, moved the Court of Appeal at Nyeri under sections 1A, 1B and 3A of the Appellate Jurisdiction Act and Rules 5(2)(b) and 49(4) of the Court of Appeal Rules, 2022 for stay of execution of a judgment of Makau, J. delivered on 31st July 2024 in Meru ELRC Cause No. E008 of 2023 consolidated with Cause No. E012 of 2023. The ELRC had found the dismissals of two employees, Phineas Kaimenyi Ringera and Isabella Kuria Kunga, unlawful and awarded them Kshs.229,698 and Kshs.1,120,724 respectively. The applicant filed a Notice of Appeal and contended the intended appeal was arguable on grounds including adherence to Employment Act termination procedure, the bar set for dismissal under section 34, payment in lieu of notice already received, inordinately high compensation, and non-applicability of a Collective Bargaining Agreement. Applying the principles in Stanley Kangethe Kinyanjui v Tony Ketter, the court found the points arguable. On nugatory aspect, the applicant said public funds were at stake and the respondents could not refund; the court held the burden then shifted to the respondents to demonstrate refund capacity, which they failed to do. The court allowed the Motion, stayed execution of the ELRC judgment pending the appeal, and ordered costs of the Motion to be in the appeal. The lower court decision was not disturbed at this interlocutory stage; the intended appeal remains to be heard.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The points on procedure of termination under the Employment Act, payment in lieu of notice already received, quantum of compensation and applicability of a CBA are arguable points worthy of consideration.

Reasoning

The court applied the standard from Stanley Kinyanjui v Tony Ketter that arguability does not require proof that the appeal will succeed, only that the point is not frivolous. The proposed grounds on the Employment Act procedure, double payment of notice pay, excessive compensation and CBA applicability were found to be real points for the full court.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes - the respondents did not show ability to refund the decretal sums if paid, so the nugatory principle was satisfied.

Reasoning

The applicant said public funds would be used and the respondents could not refund Kshs.229,698 and Kshs.1,120,724 if the appeal succeeded. The respondents, who bore the shifted burden, did not demonstrate refund capacity, instead complaining about obstruction of execution.

p. 3

Legal principles established

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  • An applicant for stay of execution under Rule 5(2)(b) must show an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • Once an applicant asserts the respondent cannot refund the decretal sum, the burden shifts to the respondent to show ability to refund if the appeal succeeds.

Court orders

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  1. 1.Stay of execution of the judgment in Meru ELRC No. E008 of 2023 consolidated with Cause No. E012 of 2023 pending hearing and determination of the appeal
  2. 2.Costs of the Motion to be in the appeal
On appeal from
Employment and Labour Relations Court, Meru
Cause No. E008 of 2023 (consolidated with E012 of 2023)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Appellate Jurisdiction Act and Rules 5(2)(b) and 49(4) of the Court of Appeal Rules, 2022

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 Attorney General v Isabella Kuria Kunga & 1 other", Case Analysis (2025). Civil Application (Nyeri) - Rule 5(2)(b) application arising from Meru ELRC Cause No. E008 of 2023 consolidated with Meru Cause No. E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1092/eng@2025-06-05

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