Director General National Intelligence Service & another v Vincent Konga Chelimo [2019] KECA 171 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a reinstatement order against an employer can be suspended pending appeal, staying a dismissed NIS officer's reinstatement.
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 the intended appeal would be rendered nugatory if stay is not granted
- 3.Whether an order for reinstatement is self-executing and not amenable to a stay order
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable since both parties raised arguable issues, including whether acquittal in a criminal case bars internal disciplinary processes and whether unconditional reinstatement was warranted.
The court applied the settled test that it is sufficient if a single bona fide arguable ground is raised; an arguable appeal need not succeed but must not be frivolous. The applicant raised grounds concerning the reinstatement order and the interplay of criminal acquittal with internal disciplinary processes, while the respondent defended the reinstatement on fairness grounds. The court found both sets of issues arguable and thus satisfied the first limb of the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory if stay is not granted
The appeal would be rendered nugatory because the respondent did not prima facie demonstrate ability to refund monies paid in satisfaction of the decree, and public interest weighed in favour of stay given the sensitive nature of the position of Senior Intelligence Officer.
The applicant argued the respondent, dismissed since 2015, could not repay any monies paid, and that his position had been filled, with trust and confidence between employer and employee having waned. The court held the evidential burden lay on the applicant but found the respondent had not shown capacity to refund. It also invoked public interest, per the Supreme Court in Munya, and the sensitive and delicate duties of a Senior Intelligence Officer, to conclude the balance of convenience dictated a stay.
Whether a reinstatement order is amenable to a stay of execution
A reinstatement order is not self-executing in the sense of being immune from stay; courts have regularly stayed reinstatement orders.
The respondent contended that a reinstatement order is immediately self-executory and not amenable to stay. The court rejected this, noting numerous judicial decisions in which stays of reinstatement orders had been granted. It therefore held it was incorrect to urge that a court cannot stay a reinstatement order, and proceeded to stay both reinstatement and payment of the decretal sum.
Legal principles established
#- An application under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless stay is granted.
- A single bona fide arguable ground suffices to establish that an intended appeal is arguable.
- An order of reinstatement is not self-executing and can be stayed by the court pending appeal.
Court orders
#- 1.Order for stay of execution of the judgment and decree of the trial court dated 6th March 2018
- 2.Order to stay reinstatement of the respondent and payment of the decretal sum pending the hearing and determination of the intended appeal
- 3.Applicant to file and serve the Record of Appeal within sixty (60) days of the date of the ruling
- 4.Notice of Motion dated 5th April 2018 allowed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 256 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
for an application under rule 5(2) (b) to succeed, the applicant must satisfy the court on two matters, namely: 1. That the appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal; 2. That if an order of stay or injunction, as the case may be, is not granted, the appeal, or the intended appeal, were it to succeed, would have been rendered nugatory by the refusal to grant the stay or the injunction.
As to whether the intended appeal is arguable, it is sufficient if a single bona fide arguable ground of appeal is raised.
For the foregoing reasons, we hereby issue an order for stay of execution of the judgment and decree of the trial court dated 6 th March, 2018. For avoidance of doubt, we hereby issue an order to stay reinstatement of the respondent and payment of the decretal sum pending the hearing and determination of the intended appeal.
It is thus incorrect to urge that a court cannot stay a reinstatement order.
Issues in the judgment
#The judgment renders the respondent's name inconsistently: the title/cause heading reads 'Vincent Konga Chelimo' while the body reads 'Vincent Konga Chelimon'.
The case cited as 'National Industrial Credit Bank Limited -v- Acquinas Francis Wasike [2006] eKLR' (by the applicant) reappears as 'National Industrial Credit Bank Ltd -v- Aquinans Francis Wasike, Civil Application No. 238/2005' in the court's analysis, with differing spellings of the respondent's name.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney General & 3 others v Initiative & 3 others (Civil Application E155 of 2025) [2025] KECA 1847 (KLR)[2025] KECA 1847 (KLR)7 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Director General National Intelligence Service & another v Vincent Konga Chelimo [2019] KECA 171 (KLR)", Case Analysis (2019). Civil Application No. 105 of 2018 (UR 87/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/171/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.