County Government of Vihiga v Kenya Union of Clinical Workers (Civil Application E243 of 2024) [2025] KECA 1411 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a stay application because no notice of appeal covered the judgments being challenged, and dismissed rulings cannot be stayed.
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 Court can grant stay of the judgments of 26th May 2023 and 30th November 2023 absent notices of appeal against them
- 2.Whether the ruling of 29th February 2024 dismissing the review application, being a negative order, is capable of being stayed
Key legal issues
#Whether stay can issue in respect of decisions against which no notice of appeal has been filed
It cannot; a notice of appeal under Rule 77 is a jurisdictional prerequisite to a Rule 5(2)(b) stay application.
The applicant sought to stay the two earlier judgments as well as the ruling, but conceded it had only filed a notice of appeal against the ruling. The Court held that Rule 5(2)(b) jurisdiction is triggered only by a notice of appeal filed in accordance with Rule 77, citing Nguruman Limited and D E N v P N N. Since no notice of appeal evinced an intention to challenge the two judgments, no stay of them could be granted.
Whether the ruling of 29th February 2024, which dismissed a review application, is capable of stay
No; it was a negative order imposing no positive obligation and is therefore incapable of stay.
The ruling merely dismissed the applicant's plea to review part of the earlier judgment and its computation; it required no further performance of obligations. The positive obligations were contained in the decisions of 26th May 2023 and 30th November 2023. Relying on the long-standing principle in Western College of Arts and Applied Sciences v EP Oranga, the Court held that a negative order cannot be stayed, and the ruling of 29th February 2024 fared no better.
Legal principles established
#- Jurisdiction to hear a stay application under Rule 5(2)(b) of the Court of Appeal Rules is triggered by the filing of a notice of appeal in accordance with Rule 77, and is a jurisdictional prerequisite
- A negative order is incapable of stay
Court orders
#- 1.Prayer 2 of the motion (deeming the record of appeal filed within the prescribed period) withdrawn and withdrawal granted
- 2.Notice of motion dated 30th September 2024 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Bungoma
- ELRC No. 32 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, triggered by filing of a notice of appeal under Rule 77
Relief refused
#Stay of execution of the judgments of 26th May 2023 and 30th November 2023
No notices of appeal were filed against those decisions, so jurisdiction under Rule 5(2)(b) was never triggered in respect of them
Stay of execution of the ruling of 29th February 2024 and the decree arising from it
The ruling dismissed a review application and was a negative order, which is incapable of stay
Costs
The notice of motion dated 30th September 2024 was 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.
the jurisdiction of this Court to hear and determine a stay application under Rule 5(2)(b) of the Rules of this Court is triggered by the filing of a notice of appeal in accordance with Rule 77. It is a jurisdictional prerequisite
It has been said by this Court, time without number (see for example Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR)), that a negative order is incapable of stay and the order of 29th February 2024 cannot fare any better.
As is clear, the notice of motion dated 30th September 2024 is beset by insurmountable dificulties and is hereby dismissed with costs.
Issues in the judgment
#The judgment refers inconsistently to the first judgment, at one point as 'partial judgment of 28th May 2023' and elsewhere as a judgment 'dated 26th May 2023'
The review application is described as against a computation made in 'the judgment of 3rd November 2023' whereas elsewhere the judgment is dated 30th November 2023
The judgment does not state the case title, appeal number, or neutral citation; the parties are identified only by counsel's names
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Vihiga v Kenya Union of Clinical Workers (Civil Application E243 of 2024) [2025] KECA 1411 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1411/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.