National Syndemic Diseases Control Council v Nyamolo (Civil Appeal (Application) E660 of 2025) [2026] KECA 1210 (KLR)
The bottom line
#The Court of Appeal refused to pause an employer's salary judgment because it never showed the employee couldn't repay the money if the appeal succeeded.
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 has jurisdiction to entertain the motion given the alleged non-service of the notice of appeal and memorandum of appeal
- 2.Whether the intended appeal is arguable
- 3.Whether, if the stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether non-service of the notice of appeal and memorandum of appeal ousts the Court's jurisdiction over a Rule 5(2)(b) application
The Court declined to determine service disputes on the stay motion, holding itself properly seized and leaving the question to the pending striking-out application
The respondent argued that failure to serve the notice of appeal was fatal and left the Court without jurisdiction to grant a stay. The applicant contended a notice of appeal was filed and duly served. Given the contestation and the pendency of a striking-out motion raising the same issues, the Court considered it appropriate to leave the rival positions to that application and held itself properly seized of the stay application.
Whether the intended appeal is arguable
The intended appeal was found arguable, particularly on whether the trial judge erred in awarding general damages equivalent to three months' salary despite the contract having lapsed by effluxion of time
Applying the settled test that a single bona fide arguable ground suffices, the Court examined the draft memorandum of appeal annexed to the motion. It identified an arguable point on the award of general damages equivalent to three months' salary notwithstanding the assertion that the respondent's contract had lapsed by effluxion of time and without misconduct, and declined to say more lest it embarrass the bench hearing the main appeal.
Whether the appeal would be rendered nugatory if stay was refused, the decree being a money decree
The nugatory limb failed: the applicant never asserted that the respondent could not repay, nor that recovery would be difficult, nor that payment would imperil its operations
Restating the money-decree rule, the Court noted that stay is generally refused where the respondent is capable of repaying. The applicant did not allege the respondent was unable to repay, so the burden never shifted to the respondent. The applicant also failed to quantify the so-called colossal sums or show payment would cripple its operations, and the Court observed the decree comprised three months' salary, acting allowance arrears for about 19 months and gratuity, which could not be colossal.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must show the appeal or intended appeal is arguable and that unless stay is granted it will be rendered nugatory, considered against the facts of each case
- A single bona fide arguable ground suffices for the arguability limb; it need not necessarily succeed but must deserve further interrogation at the hearing of the main appeal
- For money decrees, stay will generally not be granted unless the applicant shows the respondent lacks known assets or that recovery will be impossible; stay may be deserved where payment would cripple the applicant's operations or pose an existential threat
Court orders
#- 1.The notice of motion dated 10th November 2025 seeking stay of execution pending appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court at Nairobi
- null
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELRC judgment dated 25th September 2025 pending the intended appeal
The applicant failed to demonstrate that the respondent could not repay the money decree or that recovery would be difficult, and the decree could not be described as colossal or capable of imperilling the applicant's operations
Costs
The notice of motion 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 the Court under Rule 5(2)(b) is original and discretionary, and it is trite law that to succeed, an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
The decree is a money decree and normally the courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the court ascertains that the respondent is not a "man of straw" but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant.
Nowhere in the application does the applicant state that the respondent is unable to repay the decretal sums in the event the appeal is of good fortune. In the absence of such challenge, the pendulum of proof did not swing to the respondent to demonstrate financial ability.
Accordingly, the notice of motion dated 10th November, 2025, is without merit and is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Syndemic Diseases Control Council v Nyamolo (Civil Appeal (Application) E660 of 2025) [2026] KECA 1210 (KLR)", Case Analysis (2026). Notice of motion dated 10th November 2025 (Civil Application, Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1210/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.