Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefit Scheme v Morara Omoke Advocates
The bottom line
#Kenya's Court of Appeal halted enforcement of a Kshs.641 million legal fee bill against a pension scheme, saying the money must wait until the appeal is heard.
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 satisfied the twin principles for grant of stay of further proceedings pending the hearing and determination of the intended appeal - that the appeal or intended appeal is arguable, not frivolous
- 2.Whether, if the order is refused and the appeal subsequently succeeds, the results of the appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The appeal was arguable: the basis upon which the value of a subject matter for taxation is determined, and the ELRC's jurisdiction to review its own ruling under Rule 33, are worthy of the Court's consideration.
The Judge had used a computation from the original proceedings to fix the subject matter value at Kshs.18 billion, whereas a later court-adopted consent ascertained a far lower value. The basis for determining subject-matter value for taxation, and the scope of the ELRC's review jurisdiction under Rule 33 of the ELRC (Procedure) Rules, raise bona fide points of law meriting full scrutiny on appeal.
Nugatory aspect / impecunity
The applicant satisfied the nugatory test: the respondent gave no rebuttal evidence of ability to refund the colossal costs, held in trust for pensioners, so payment would be irreversible and not compensatable by damages.
Relying on International Laboratory for Research on Animal Diseases v Kinyua, the Court held the onus shifted to the respondent to rebut the impecunity allegation with evidence. He acknowledged the challenge but filed no such evidence. Given the colossal amount, its trust character for pensioner beneficiaries, and the lack of commitment to repay, the Court was not satisfied the consequences of payment would be reversible or compensatable.
Legal principles established
#- An arguable appeal need not necessarily succeed; a single bona fide point of law worthy of full scrutiny suffices.
- Where an applicant alleges an appeal will be rendered nugatory on account of the respondent's impecunity, the onus shifts to the respondent to rebut the allegation with evidence.
- A respondent who does not rebut an impecunity allegation with evidence of ability to pay risks a stay where the sum involved is colossal and held in trust for beneficiaries.
Court orders
#- 1.Pending the hearing and determination of the intended appeal, a stay of all further proceedings in ELRC Miscellaneous Application No. E002 of 2024 arising from or consequent upon the taxation of the Respondent's Advocate-Client Bill of Costs, including the hearing and determination of the Respondent's application for judgment upon the Certificate of Taxation; entry of judgment upon the Certificate of Taxation; issuance of a decree; and execution or any enforcement proceedings founded upon the Certificate of Taxation
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Miscellaneous Application No. E002 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
Pending the hearing and determination of the intended appeal, there be a stay of all further proceedings in ELRC Miscellaneous Application No. E002 of 2024 arising from or consequent upon the taxation of the Respondent's Advocate- Client Bill of Costs
Costs of this application shall abide the outcome of the intended appeal.
an arguable appeal is not one that must necessarily succeed, but one that raises even a single bona de point of law worthy of the Court’s full scrutiny
where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent’s impecunity, the onus shifts to the latter to rebut the allegation
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means tring.
Issues in the judgment
#Date of Advocate-Client Bill of Costs predates the underlying litigation
Certificate of Taxation amount stated inconsistently (million vs billion)
Consent value stated inconsistently (Kshs.1,511,161,174.24 vs Kshs.1 billion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefit Scheme v Morara Omoke Advocates", Case Analysis (2026). Civil Application E388 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.