Board of Trustees, Kenya Broadcasting Corporation Staff Retirement Benefit Scheme v Morara Omoke Advocates

was subsequently delivered in favour of the applicant; that, however, the Court did not determine the exact monetary amount payable, but directed the parties to undertake reconciliation of accounts before the nal amount could be adopted by the Court; that, following termination of the respondent’s retainer, the respondent raised an Advocate-Client Bill of Costs dated 7th June 2003 against the applicant; that the Taxing Master, Hon. Aziza, delivered her ruling on 22nd December 2023 awarding the respondent Kshs.57,511,395/= as costs; that, on 30th April 2025, the ELRC allowed the applicant’s reference; and that, relying on computations led by the respondent during the proceedings in the substantive suit to quantify the decretal amount due to the applicant, directed that the taxation proceeds based on the value of the subject matter of approximately Kshs.18,421,704,159/=, despite being informed that the process through which the actual decretal amount was to be ascertained remained incomplete. 3. It was further deponed that the taxation was done culminating in the Certicate of Taxation dated 30th April 2025 certifying approximately Kshs.18.421 million as payable to the respondent; that, upon conclusion of the reconciliation process, the applicant and KBC agreed on the actual amount payable as being Kshs.1,511,161,174.24 which was subsequently embodied in a Consent dated 15th January 2026 that was duly adopted as an order of the court; that, following adoption of the Consent, the applicant led an application before the ELRC seeking review of the ruling delivered· on 30th April 2025 on the grounds the court had before it the actual reconciled amount determined pursuant to the order of the Judge in the judgment; that, on 25th June 2026, Ocharo Kebira, J. dismissed the applicant's application for review on the grounds, inter alia, that he was functus ocio and the matter res judicata upon determining the reference; that, being dissatised with the entirety of the said ruling, the applicant lodged a notice of appeal. 4. The respondent led a replying adavit sworn on 10th August 2026 by Morara Omoke advocate, the respondent, contending that the application contains false, frivolous and vexatious assertions and is an abuse of the court process intended to deny him the fruits of his judgment. He further avers that this Court lacks jurisdiction to entertain the application as it is res judicata, this Court having rendered a ruling on 4th July 2025 in COACAPPL/E293/2025 where the Court declined to grant the stay of proceedings; and is sub judice, there being a pending similar application, COACAPPL/E636/2025, that is yet to be heard and determined. He also contends that there is no valid notice of appeal against the ruling of 30th April 2025, the earlier notice having been struck out for being led out of time vide a ruling of this Court issued on 4th February 2026, and that the ruling challenged in the present application is a negative order incapable of being stayed. 5. The respondent contends that the application is premature as the proceedings sought to be stayed, including the adoption of the certicate of costs as a judgment and subsequent execution, are yet to be heard and determined. 6. We heard the application on 17th August, 2026 when learned counsel Ms. Joy Impano appeared for the applicant and Mr. Justice Nyaga appeared for the respondent. Counsel relied on their respective written submissions with oral highlights. 7. On arguability of the intended appeal, Ms. Impano relied on the applicant’s led memorandum of appeal and urged that the appeal challenges the Judge’s interpretation of the court’s review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules; the Judge’s application of the doctrines of functus ocio and res judicata which he invoked to decline the application; and the question whether the Judge correctly considered the legal eect of the reconciliation undertaken pursuant to the order of the Judge in the judgment and the subsequent court-adopted Consent. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25 2

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8. Ms. Impano urged further that the appeal raises serious issues of what is the proper value of a subject matter upon which the Bill of Costs could be taxed; that the taxation proceeded on an estimated value of Kshs.18.421 billion resulting in a bill of Kshs.641 million; and that, subsequently, the applicant and KBC’s reconciliation brought down the actual value to Kshs1.5 billion. Counsel urged that the trial court wrongly held that it was functus ocio and failed to consider material circumstances supporting review, including a prior consent adopted by the court xing the value of the subject matter at Kshs.1.5 billion; and further, the evidence that the advocate who led the Kshs.18 billion valuation did so without instructions. Counsel urged that, consequently, two issues arise: whether the correct value of the subject matter was considered during the taxation; and, whether the later material developments in the matter were properly considered in determining the basis of the taxation, or whether they ought not to have been considered 9. In response to the contention by the respondent that the application sought to stay the ruling of 30th April 2025, Ms. Impano submitted that the applicant was not seeking stay of the said ruling, but rather a stay of the enforcement proceedings commenced by the respondent following the ruling of 25th June 2025 declining review. She urged that the respondent had relied on the refusal to review to assert that the Kshs.18 billion valuation remained applicable, and that he had subsequently moved the trial court to enforce the certicate of taxation. She therefore argued that the present application was occasioned by those fresh enforcement proceedings and was not an attempt to take another opportunity to challenge the earlier ruling. Lastly, she urged that the review application was led later after the consent of January 2026, and that it could only be pursued after the ELRC permitted a change of representation, having previously made an order preventing such change until taxation was completed. 10. On arguability, Mr. Nyaga submitted that the intended appeal was neither arguable nor deserving of the Court’s discretion; that it was sub judice, moot and legally untenable. Counsel contended that it was frivolous and premised on a disputed consent allegedly entered into after taxation and termination of the advocate’s engagement. He urged that the application was premature as the taxation proceedings were still ongoing; that the proceedings before the ELRC for adoption of the certicate of costs as a judgment of the court were yet to be heard and determined; and that execution had not commenced. Mr. Nyaga urged further that a consent adopted after termination of an advocate’s service cannot be used to revise the advocate’s fees, and further that the intended appeal is founded on fraud and perjury. Mr. Nyaga maintains that the issue of the value of the subject matter cannot be used to reopen the ruling through the intended appeal, as the time for challenging the ruling determining the value had lapsed and the notice of appeal led in that regard was struck out by this Court. 11. He therefore urged the Court to dismiss the application with costs, arguing that granting the stay would undermine the earlier decision of this Court in COACAPPL/E444 of 2025 delivered on 4th February 2026, and by which the applicant’s out-of-time notice of appeal arising from the proceedings in Misc. Reference Application No. E002 of 2024 was struck out, and would improperly reopen matters that had already been determined. 12. On the nugatory aspect, Ms. Impano argued that, unless stay is granted, the respondent would proceed to enforce the certicate of taxation for Kshs.641,882,954.72 million, which was is pensioners’ money held by the applicant’s Board of Trustees. She contended that execution would deprive vulnerable pensioners of funds intended for their benet. Counsel submitted that the respondent had not demonstrated an ability to refund the money should the appeal succeed, which if that happened would render the appeal nugatory. She maintained that the present application was properly before the Court as there is a valid notice of appeal, unlike the earlier applications which dealt with the issue of leave to appeal and had not resulted in the Court determining the merit of a 5 (2)(b) application. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25 3

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13. On the nugatory aspect, Mr. Nyaga submitted that the intended appeal will not be rendered nugatory if stay is declined as the proceedings before the ELRC are still pending, the applicant’s ability to defend the taxation reference will not be hindered, and the proceedings sought to be stayed are unrelated to the impugned ruling. He further submits that the proceedings are reversible and damages would adequately compensate any aggrieved party. He asserts that granting stay would, in any event, render this Court’s decision in COACAPPL/E444/2025 nugatory, as it would stall proceedings in Misc. Reference Application No. E002 of 2024 on the basis of an unrelated notice of appeal. Mr. Nyaga further contends that there are no exceptional circumstances warranting a stay of proceedings in Misc. Reference Application No. E002 of 2024. 14. Lastly, Mr. Nyaga argued that, should this Court be inclined to grant stay, it should be conditional upon the applicant depositing the full sum of Kshs.641,882,954.72 awarded in the certicate of costs as security. He nonetheless urged this Court, in the interests of fairness and justice, to dismiss the application with costs. 15. Having considered the applicant’s Motion, the adavits in support and in reply, the rival submissions and the law, we nd that two main issues commend themselves for our determination, namely: whether the applicant has satised the twin principles for grant of stay of further proceedings pending the hearing and determination of the intended appeal, the rst principle being to demonstrate that the appeal or intended appeal is arguable, not frivolous; and, the second, to satisfy this Court that if the order is refused and the appeal subsequently succeeds, the results of the appeal would be rendered nugatory. See. Multimedia University & Another vs. Professor Gitile N. Naituli [2014] eKLR and Trust Bank Limited & Another vs. Investech Bank Limited & 3 Others [2000] eKLR. 16. As regards arguability of the application, we are aware that 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. See: Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd & 2 Others [2009] eKLR. 17. The applicant has raised several issues as arguable grounds deserving this Court’s consideration. The main issue in our view is the issue of the value of the subject matter. What the applicant was challenging before the ELRC in its review application was the basis upon which the value of the subject matter was determined. The Judge had used a computation in the original proceedings to determine that the value was Kshs.18 billion. Thereafter, the parties, pursuant to the order of the trial Judge in the judgment of the main suit led a consent ascertaining the value of the subject matter as Kshs.1 billion. We think that the basis upon which the value of a subject matter can be determined is an arguable issue worthy of this Court’s consideration. Related to that, we think that the interpretation of the jurisdiction of the ELRC to review its own ruling pursuant to rule 33 Employment and Labour Relations Court (Procedure) Rules is equally worthy of this Court’s consideration. We are satised that the applicant’s appeal is arguable; it is not frivolous. 18. On the nugatory aspect, in Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR, this Court stated that: “ ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means triing. x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25 4

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19. On the nugatory aspect, the applicant has argued that it is the Board of trustees representing beneciaries of the money. It urged that the payment of the Bill of Costs will be paid out of pension money. Ms. Impano submitted that the costs were assessed at Kshs.641 million, which she urged is a colossal sum; that it was money belonging to pensioners and there was no indication or commitment made by the respondent that he was capable of refunding the money if it was paid out and the appeal succeeded. 20. The applicable test in determining whether the appeal may be rendered nugatory was stated in Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others, (supra), that is whether or not what is sought to be stayed if allowed to happen is reversible; or, if it was not reversible, whether damages will reasonably compensate the party aggrieved. This Court in International Laboratory for Research on Animal Diseases vs. Kinyua [1990] eKLR held that, 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 Court further held that such allegation calls for rebuttal evidence from the respondent. 21. The respondent acknowledged that his ability to repay the costs in the Bill of Costs to the applicant, if the stay sought is declined and the appeal was to succeed has been questioned. What he needed to do is to give evidence to demonstrate his capability to pay. He has not done that. Considering that the amount involved is colossal; that it is money held in trust for beneciaries over which the applicants have duciary responsibility; and given the lack of commitment by the respondent to show ability to repay, we are not satised that, if the stay is declined and the money is paid out, such an event will not be reversible, neither will it be compensatable by an award of damages. 22. Having carefully considered the applicant’s Motion, the adavits in support and in reply, the impugned decision, the rival submissions of learned counsel, the cited authorities and the law, we reach the inescapable conclusion that the applicant has met the threshold for grant of the stay of proceedings sought. The applicant’s application dated 13th July, 2026 is allowed as follows: 1) 2) 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, including: a) the hearing and determination of the Respondent's application for judgment upon the Certicate of Taxation; b) entry of judgment- upon the Certicate of Taxation; c) issuance of a decree; d) execution or any enforcement proceedings founded upon the Certicate of Taxation. Costs of this application shall abide the outcome of the intended appeal. DATED AND DELIVERED IN NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU (P), FCIArb, CArb. ...................... JUDGE OF APPEAL J. LESIIT ...................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25 5

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DR. K. I. LAIBUTA CArb, FCIArb. ...................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1824/eng@2026-09-25 6

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