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Court of AppealDismissedCivil Appeal (Application) E326 of 2025· [2026] KECA 1777 (KLR)

Pannju Agencies Company Ltd v Mwai

Court of Appeal
25 September 2026
SKS. Gatembu KairuGOG. V. OdungaMKMurungi B. Kairaria
848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause an employment award because the company gave no evidence the winner couldn't repay the money if the appeal succeeded.

What this practically means

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Executive summary

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The applicant, Pannju Agencies Company Limited, sought stay of execution of a judgment of the Employment and Labour Relations Court at Nairobi (J.W. Keli, J.) dated 12 February 2025 in ELRC Cause No. E245 of 2023, which dismissed its appeal and allowed the respondent's cross-appeal, enhancing awards for unlawful termination, underpayment and untaken leave. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules, supported by an affidavit of Zenedine Kimamo Njogu. The respondent, though served, did not appear. The applicant argued the appeal was arguable on whether an employer-employee relationship existed, whether the doctrine of continuing injury was wrongly applied to underpayment claims dating to 2016 beyond the Section 90 limitation period, and whether the Judge properly enhanced the magistrate's award; and that the appeal would be nugatory as the respondent could not refund the decretal sum. Applying the Kinyanjui v Ketter principles, the court found the appeal arguable but held the nugatory limb failed: the decree was a liquidated monetary sum and there was no affidavit averment, only a bare submission, that the respondent lacked means to refund. The application was dismissed with no orders as to costs given the respondent's non-appearance. The intended appeal remains pending; the ELRC judgment stands undisturbed.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is arguable; the questions of independent contractor status, employer-employee relationship and enhancement of awards are not frivolous

Reasoning

Applying the Kinyanjui v Ketter principles, the court found the issues raised on the employment relationship and the enhancement of the magistrate's award raised bona fide questions fit for the full appeal, though an arguable appeal need not succeed.

p. 2
02

Whether the appeal would be rendered nugatory without stay

Holding

No; the decree is a liquidated monetary sum and there is no verified assertion that the respondent cannot refund it if the appeal succeeds

Reasoning

The court held that a bare submission that the respondent lacks means, unsupported by any averment in the supporting affidavit, does not discharge the applicant's burden; the respondent's financial ability would then have had to be demonstrated.

p. 2

Legal principles established

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  • An arguable appeal is not one that must necessarily succeed; it need only not be frivolous
  • On nugatory-ness, a party asserting the decree-holder cannot refund a liquidated sum must support that assertion with evidence; mere submission is insufficient

Court orders

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  1. 1.Application for stay of execution dismissed
  2. 2.No orders as to costs
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. E245 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Pannju Agencies Company Ltd v Mwai", Case Analysis (2026). Civil Appeal (Application) E326 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1777/eng@2026-09-25

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