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Court of AppealDismissedCivil Application E047 of 2021· [2022] KECA 1415 (KLR)

Governor, Kericho County & another v Ngeno

Court of Appeal
16 December 2022
DMD K MusingaHOHannah OkwenguASAsike-Makhandia
1,861 words in judgment
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The bottom line

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The Court of Appeal refused to pause payment of Kshs 8.4 million awarded to a former Kericho county official because he can afford to refund it if the appeal succeeds.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Musinga, Okwengu and Asike-Makhandia, JJA) on a notice of motion dated August 12, 2021 by the Governor and County Government of Kericho seeking stay of execution of a judgment of Wasilwa, J of the Employment and Labour Relations Court dated July 7, 2021. The ELRC had found that the respondent, a former County Executive Committee Member for lands, housing and physical planning, removed from office in January 2017 while facing corruption charges arising from prior employment with the defunct Municipal Council of Eldoret, had suffered unconstitutional termination, and awarded him Kshs 8,394,500/= plus costs and interest. The applicants argued their intended appeal was arguable - contending error on violation of rights, disregard of public interest, and the respondent's year-long absence - and that execution would render the appeal nugatory given the substantial decretal sum and possible inability to refund. Applying the settled twin test from Stanley Kangethe Kinyanjui vs Tony Ketter, the court found the grounds arguable but held the nugatory prerequisite unsatisfied: the respondent had categorically stated he was an architect of means able to refund, the applicants did not rebut this, and the alleged run on county finances was speculative. Both prerequisites must be met under rule 5(2)(b). The application was dismissed with costs to the respondent. The underlying appeal remains pending; this ruling does not disturb the ELRC judgment.

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds of appeal - violation of rights, disregard of public interest, and the respondent's year-long absence - were arguable

Reasoning

The court applied the Kinyanjui v Ketter test: an arguable appeal is one that is not frivolous and raises a bona fide issue capable of full argument, whether or not it ultimately succeeds. A single bona fide ground suffices. The applicants' grounds met that threshold.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

The nugatory prerequisite was not satisfied; the respondent's unrebuted assertion that he is an architect of means capable of refunding the decretal amount defeated the claim

Reasoning

Nugatory depends on whether what is stayed is reversible or whether damages will compensate. For money decrees, courts examine whether the respondent is a person of straw. The respondent categorically stated he could repay; the applicants did not rebut this, and the alleged run on county finances was speculative.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory prerequisites; satisfying only one is insufficient
  • An arguable appeal need not succeed; it suffices that it raises a bona fide issue, and a single bona fide arguable ground is enough
  • A money decree ordinarily does not render an appeal nugatory where the respondent is shown able to repay the decretal amount

Court orders

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  1. 1.The notice of motion dated August 12, 2021 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 43
  • Court of Appeal Rulesrule 43b
  • Court of Appeal Rulesrule 47
  • Anti-Corruption and Economic Crimes Actsection 46 as read with section 48(1)
  • Anti-Corruption and Economic Crimes Actsection 45(2)(b) as read with section 48(1)(a)
  • Anti-Corruption and Economic Crimes Actsection 45(a)(3) as read with section 48(1)
  • Constitution of Kenya, 2010article 10
  • Constitution of Kenya, 2010article 41
  • Constitution of Kenya, 2010article 47
  • Constitution of Kenya, 2010article 236

Cases cited (6)

  • Housing Finance Company of Kenya vs Sharok Kher Mohamed Ali Hirji & Another
    [2015] eKLR

    Riders to the money-decree position: undue hardship where stay is refused purely because the decree is a money decree

  • RWW vs EKW
    [2019] eKLR
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others
    [2013] eKLR

    Crystallised the twin principles for rule 5(2)(b): arguability and nugatory

  • Joseph Gitahi Gachau & Another vs Pioneer Holdings (A) Ltd & 2 Others
    Civil Application no 124 of 2008

    An arguable appeal is one that is not frivolous and raises a bona fide issue

  • Damji Pragji Mandavia vs Sara Lee Household & Body Care (K) Ltd
    Civil Application no Nai 345 of 2004

    A single bona fide arguable ground suffices

  • Kenya Hotel Properties Limited vs Willesden Properties Limited
    Civil Application no 322 of 2006 (UR 178/2006)

    Money decree does not render appeal nugatory if respondent can repay the decretal amount

On appeal from
Employment and Labour Relations Court
Kericho ELRC Petition No. 2 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Governor, Kericho County & another v Ngeno", Case Analysis (2022). Civil Application E047 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1415/eng@2022-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.