Judicial Service Commssion v Wasamu (Civil Application E078 of 2025) [2026] KECA 915 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has met the threshold for grant of an order of stay of execution under rule 5(2)(b) of the Court of Appeal Rules
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
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 oft cited decision of Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others (supra) highlighted the twin principles under rule 5(2)(b), namely that the applicant has to demonstrate that the appeal or the intended appeal is arguable and, absent stay, the appeal or the intended appeal will be rendered nugatory.
it behoves us to protect the subject matter of the appeal.
It follows that the applicant has suficiently demonstrated the two limbs under rule 5(2)(b) of this Court’s Rules, which limbs must be satisfied conjunctively to warrant grant of stay.
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 be and is hereby granted pending the hearing and determination of the intended appeal.
Issues in the judgment
#The judgment is dated 15th May 2026 while the application was heard on 9th December 2025; the date as printed is reproduced here, but if the year 2026 is a typographical error for 2025 the date of judgment would require correction.
The parties are inconsistently described: the Judicial Service Commission is called the 'applicant' throughout although it filed a Notice of Appeal and is treated as the appellant, and the respondent is described as having sued 'the applicant' in Cause No. E077 of 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commssion v Wasamu (Civil Application E078 of 2025) [2026] KECA 915 (KLR)", 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.