Tracom Services Limited v Rose Wanja Mutuah
The bottom line
#Kenya's Court of Appeal refused to pause execution of a Kshs.9 million employment award because the employer showed no evidence the employee couldn't refund the money.
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 intended appeal is arguable
- 2.Whether, unless stay is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Yes - a single bona fide arguable point suffices; the challenge to the award of unpaid commissions without a contractual commission structure and on burden of proof sufficed
The court reiterated that an arguable appeal need not be one that must succeed; it is enough that a single bona fide issue worthy of consideration is disclosed. The applicant's contention that the trial Judge awarded Kshs.9,224,816.58 in unpaid commissions absent a contractual commission structure and despite insufficient evidence raised such a point, without expressing any concluded view on the merits.
Whether the appeal would be rendered nugatory if stay is withheld
No - the applicant failed to discharge its burden on the nugatory limb for a money decree
The decree is a money decree; the applicant had to lay a reasonable basis for apprehending the respondent's inability to refund. It merely asserted she was an individual without adducing evidence of her financial means, and its claim of irreparable business prejudice from attachment of servers was unsupported. The respondent deposed she was employed and capable of refunding, which was not materially challenged.
Legal principles established
#- Rule 5(2)(b) stay jurisdiction is discretionary and requires the applicant to satisfy cumulatively both the arguability and nugatory limbs
- For a money decree, the applicant must lay a factual basis for alleging the respondent's inability to refund before the evidential burden shifts to the respondent
Court orders
#- 1.The Notice of Motion dated 24th June 2025 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 767 of 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELRC judgment and decree pending hearing of the application and intended appeal
Applicant failed to satisfy the nugatory limb; no evidential basis laid for the respondent's alleged inability to refund the decretal sum
Costs
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 two limbs are cumulative, and an applicant who fails to satisfy either limb cannot obtain the relief sought.
An arguable appeal is not one that must succeed, but one that raises a bona fide issue worthy of consideration by this Court.
In the result, although we are prepared to accept that the intended appeal is arguable, we are not persuaded that the applicant has demonstrated that the intended appeal would be rendered nugatory if the orders sought are withheld.
Having failed to satisfy the second limb under Rule 5(2)(b), the Notice of Motion dated 24th June 2025 is devoid of merit and is accordingly dismissed with costs to the respondent.
Issues in the judgment
#Trial judge's surname spelled inconsistently within the ruling
Respondent's submission dates the judgment to 2021, contradicting the stated delivery date of 16th November 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tracom Services Limited v Rose Wanja Mutuah", Case Analysis (2026). Civil Application No. E376 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1803/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.