Tracom Services Limited v Rose Wanja Mutuah

one month’s salary in lieu of notice amounting to Kshs.261,661.66, having offset the other month’s notice with Page 2

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accrued leave. After setting off that amount against the unpaid commissions, the court entered judgment in favour of the respondent for Kshs.8,963,154.92. 2. The motion is supported on the grounds that, being dissatisfied with the impugned judgment, the applicant intends to exercise its right of appeal and has already lodged a Notice of Appeal dated 29th November 2023. It is further contended that, following the taxation of the respondent’s Bill of Costs on 18th June 2025 in the sum of Kshs.416,335.80 and the extraction of the decree, there is a real apprehension that the respondent will proceed with execution unless an order of stay is granted. The applicant asserts that the intended appeal is arguable and has a high chance of success, and that unless the orders sought are granted, the appeal will be rendered nugatory. It is further maintained that the respondent will suffer no prejudice if the orders sought are granted. 3. The motion is opposed. The respondent deposed that following the judgment in her favour, the costs awarded by the trial court were duly taxed and warrants of attachment were issued on 4th July 2025. Pursuant to those warrants, Beta Base Auctioneers, acting on her instructions, visited the applicant’s offices at Springette Office Park, Spring Valley, assessed the assets, and proclaimed goods sufficient to satisfy the decretal sum. The respondent contended that, instead of lawfully challenging the execution process, the Page 3

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applicant frustrated the execution by violently and physically resisting the auctioneers, and that the Page 4

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present application is merely intended to delay execution and deny her the fruits of her judgment. 4. The respondent further averred that the applicant had not demonstrated the substantial loss it stood to suffer if stay was declined and that she was financially capable of refunding the decretal sum should the intended appeal ultimately succeed. She also challenged the competence of the Notice of Appeal, contending that it was lodged by a law firm that was not properly on record for the applicant and had not obtained leave to come on record, rendering the notice defective and incapable of invoking this Court’s jurisdiction. Accordingly, the respondent maintained that the application is incompetent and has failed to demonstrate that, absent the orders sought, the intended appeal would be rendered nugatory. 5. In a supplementary affidavit, the applicant merely deposed that the respondent, being an individual, had not demonstrated her ability to refund the substantial decretal sum of Kshs. 11,475,655.80 in the event the intended appeal succeeded, unlike the applicant, which is a technology firm. 6. When the application came up for hearing on 6 th June 2026, learned counsel Mr. Shimoli holding brief for Mr. Ayisi was present for the applicant while learned counsel Mr. Wathome Ndanu was present for the respondent. They both relied on their respective written submissions with a few highlights. Page 5

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7. The applicant submitted that the intended appeal is arguable, contending that the learned trial Judge erred in awarding the respondent Kshs.9,224,816.58 in the absence of supporting evidence, misapplied the principles governing the burden of proof, and misdirected himself on the evidence and facts of the case. It was further submitted that the appeal would be rendered nugatory if a stay of execution were not granted, as execution of the decree for Kshs.11,475,655.80 would occasion irreparable prejudice by adversely affecting the applicant’s business. Counsel explained that the applicant is a technology company whose servers, containing critical business information, were liable to attachment in execution, and that such information might not be recoverable if the servers were removed. Counsel further submitted that there was no assurance that the respondent would be in a position to refund the decretal sum should the intended appeal ultimately succeed. 8. The respondent opposed the application, submitting that no appeal had been instituted by the applicant and that the applicant had failed to demonstrate either that the intended appeal was arguable or that it would be rendered nugatory if the orders sought were declined. Counsel further submitted that execution had only been delayed by a series of applications filed by the applicant, who had also evaded execution, and emphasized that the judgment delivered in 2021 had remained unsatisfied without explanation. It was contended that the respondent was employed and capable of Page 6

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refunding any monies paid in satisfaction of the decree should the appeal succeed, Page 7

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while the applicant’s failure to file a record of appeal demonstrated that it was merely seeking to delay execution rather than genuinely prosecute the intended appeal. 9. We are guided by the settled principles governing the exercise of this Court’s jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules. The jurisdiction is discretionary and may only be exercised where an applicant satisfies the twin requirements that the intended appeal is arguable and that, unless the orders sought are granted, the appeal would be rendered nugatory, if it eventually succeeds. An arguable appeal is not one that must succeed, but one that raises a bona fide issue worthy of consideration by this Court. The two limbs are cumulative, and an applicant who fails to satisfy either limb cannot obtain the relief sought. See Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 5 Others [2013] eKLR, Reliance Bank Ltd (In Liquidation) -vsNorlake Investments Ltd [2002] 1 EA 227 and Multi Media University & Another -vs- Professor Gitile N. Naituli [2014] eKLR. 10. On the first limb, it is trite that the points raised or any one of them need not succeed. We need only be satisfied that a single bona fide arguable point has been disclosed, and we are. The applicant contends that the learned Judge erred in awarding the commissions respondent despite Kshs.9,224,816.58 in absence contractual the of a unpaid commission structure and sufficient evidentiary basis, and in Page 8

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misapplying the burden of proof. Without expressing any concluded view on the merits of Page 9

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these issues, which fall for determination at the hearing of the intended appeal, we are satisfied that the proposed appeal raises at least one bona fide issue deserving consideration by this Court. We therefore proceed on the basis that the intended appeal is arguable. 11. The application nonetheless fails on the nugatory aspect. The decree sought to be stayed is a money decree. In such circumstances, an applicant must lay a reasonable basis for the apprehension that, if the decretal sum is paid and the intended appeal ultimately succeeds, the respondent would be unable to refund it. In the present case, the applicant merely deposed that the respondent is an individual who had not demonstrated her ability to refund the decretal sum of Kshs.11,475,655.80. That assertion, without more, does not discharge the applicant’s burden. No evidence was placed before us regarding the respondent’s financial means, nor was any material presented to demonstrate that payment of the decretal sum would irreparably affect the applicant’s business or otherwise render the intended appeal nugatory. Conversely, the respondent expressly deposed that she was financially capable of refunding the decretal sum should the intended appeal succeed. As this Court observed in National Industrial Credit Bank Ltd -vs- Aquinas Francis Wasike & Another [2006] eKLR, an applicant must first lay a factual basis for alleging a respondent’s inability to repay before the evidential burden shifts to the respondent. The respondent’s ascertion that she Page

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was employed and with means to satisfy the decree was not materially challenged. 12. 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. 13. 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. Dated and delivered at Nairobi, this 25th day of September, 2026. P. O. KIAGE ....................................... . JUDGE OF APPEAL A. O. MUCHELULE ....................................... . JUDGE OF APPEAL P. LILAN ....................................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Page

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Signed DEPUTY REGISTRAR. Page

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