The Judicial Service Commssion v Samuel Opondo Wasamu
The bottom line
#Kenya's Court of Appeal halted payment of Kshs.1.1 million to a former judiciary employee, ruling employers can suspend such awards pending appeal when repayment looks unlikely.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The proposed grounds concerning paragraph 17(3) of the Third Schedule of the Judicial Service Act and the suspension letter were sufficiently arguable to warrant a hearing before a full bench.
The Court found that the applicant raised arguable grounds relating to the discretion conferred by paragraph 17(3) of the Third Schedule of the Judicial Service Act to determine alimentary allowance during suspension, and the terms of the suspension letter providing for one-third of basic salary. In its view these grounds were not idle and deserved full-bench consideration, satisfying the first limb.
Whether the intended appeal would be rendered nugatory absent stay
Because the respondent did not rebut the assertion that he lacked the means to refund the decretal sum of Kshs.1,123,500, and because the applicant is obliged to safeguard public funds, failure to grant stay would render the appeal nugatory.
The Court applied Industrial Credit Bank v Wasike on the shifted evidential burden: the applicant alleged the respondent had no known assets or income, and the respondent did not rebut this. The Court also weighed the applicant's public-fund stewardship obligations and the difficulty and delay of recovering public money, holding that stay was necessary to protect the subject matter of the appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate, conjunctively, that the appeal is arguable and that absent stay it will be rendered nugatory.
- A single bona fide arguable ground of appeal suffices to satisfy the first limb of the rule 5(2)(b) test.
- Once an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show what resources he has.
Court orders
#- 1.An order of stay of execution of the judgement and decree of Mbaru, J. delivered on 24th July 2025 in ELRC Cause No. 77 of 2024 awarding the respondent half salary during the period of suspension, pending the hearing and determination of the intended appeal
- 2.Costs shall be in the appeal
- On appeal from
- Employment and Labour Relations Court
- Cause No. E077 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Judicial Service Commssion v Samuel Opondo Wasamu", Case Analysis (2026). Civil Application (Motion) dated 26th August 2025 arising from intended appeal against ELRC Cause No. E077 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/915/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.