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Court of AppealDismissedCivil Application E047 of 2021· [2022] KECA 1427 (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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Kenya's Court of Appeal refused to pause payment of a Kshs 8.4 million award against Kericho County because the winning party could afford to refund it if the appeal succeeded.

What this practically means

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Executive summary

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The Governor and County Government of Kericho moved the Court of Appeal under rules 1(2), 5(2)(b), 43, 43(b) and 47 of the Court of Appeal Rules for stay of execution of the judgment and decree of Wasilwa, J of the Employment and Labour Relations Court dated July 7, 2021, which awarded the respondent, a former County Executive Committee Member, Kshs. 8,394,500 less statutory deductions, plus costs and interest, for unfair termination and breach of constitutional rights. The applicants argued the intended appeal was arguable - contending the trial court erred on violation of rights, public interest, and the respondent's year-long absence - and that execution would render the appeal nugatory given the substantial decretal sum, doubts about refund, and impact on county finances. The respondent countered that the fair-administrative-action findings were undisputed, that public interest cannot override fundamental rights, and that as an architect of means he could refund any decretal sum. Applying the settled twin-prerequisite test from Stanley Kangethe Kinyanjui v Tony Ketter, the court found the grounds arguable but held the nugatory prerequisite unsatisfied: the respondent's unrebuted assertion that he could repay, and the speculative nature of the alleged run on county finances, meant execution was reversible in practical terms. Both prerequisites being cumulative, the application was dismissed with costs to the respondent. The decision below was not disturbed; the intended appeal remains pending.

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 settled test that an arguable appeal is one that is not frivolous and raises a bona fide issue capable of full argument. A single bona fide arguable ground suffices. On that low threshold, the applicants' grounds met the first prerequisite, their ultimate success notwithstanding.

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Nugatory aspect

Holding

The nugatory prerequisite was not satisfied because the respondent, an architect of means, could refund the decretal sum and the applicants' financial hardship claim was speculative

Reasoning

The court applied the principle that a money decree does not render an appeal nugatory where the respondent is not a man of straw and can repay. The respondent categorically stated he was a man of means; the applicants did not rebut this. The alleged run on the applicants' finances was purely speculative, so the second prerequisite failed.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory prerequisites; satisfying only one is insufficient
  • An arguable appeal need not necessarily succeed; a single bona fide arguable ground suffices
  • A money decree will not ordinarily render an appeal nugatory where the respondent is able to repay the decretal amount on success of the appeal

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

Cases cited (6)

  • Housing Finance Company of Kenya v 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 v EKW
    [2019] eKLR

    Relied on by applicants to support grant of stay

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR

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

  • Joseph Gitahi Gachau & another v 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 v Sara Lee Household & Body Care (K) Ltd
    Civil Application No Nai 345 of 2004

    A single bona fide arguable ground of appeal is sufficient

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

    A money decree does not render an appeal nugatory if the respondent can repay the decretal amount

On appeal from
Employment and Labour Relations Court
Kericho ELRC No. 2 of 2020
Jurisdiction invoked
Rules 1(2), 5(2)(b), 43, 43(b) and 47 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/2022/1427/eng@2022-12-16

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