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Court of AppealAllowedEmployment and Labour Relations Cause Number 1162 of 2018 (intended appeal); Civil Application No. [unspecified] of 2024· [2025] KECA 108 (KLR)

Garissa Water Sewerage Company Limited v National Union of Water and Sewerage Employees & 2 others

Court of Appeal of Kenya
24 January 2025
1,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal froze a Kshs 13.6 million garnishee payment against Garissa Water, finding the appeal arguable and the money effectively unrecoverable if released.

What this practically means

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Executive summary

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Garissa Water Sewerage Company Limited moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules and the Court's inherent power, seeking stay of execution of a ruling of Abuodha J of the Employment and Labour Relations Court delivered on 26th November 2024 and of garnishee orders absolute releasing Kshs 13,660,701 from its KCB account. The applicant argued that the garnishee orders were issued without a valid decree or judgment; that a consent dated 12th April 2019 for Kshs 764,822 had been settled, and that the money could not be recovered if paid out because the person who moved the garnishee proceedings for the union, one Elijah Otieno Awach, had been suspended and charged with forgery, and the funds were to be paid into a personal account. The 1st respondent countered that the decree arose from a valid consent judgment adopted on 14th February 2019, that such a judgment could only be vitiated on grounds such as fraud or illegality which were absent, and that it had demonstrated capacity to refund any sums paid. A differently constituted bench of the Court's summary of the rule 5(2)(b) principles in Stanley Kangethe Kinyanjui vs Tony Ketter was adopted. The Court found a single bona fide arguable ground in the question whether the garnishee orders were irregularly issued without a decree, and held the appeal would be nugatory since public monies would be irreversibly paid into an individual's account with no demonstrated ability to refund. Both limbs satisfied, the motion was allowed as prayed, with costs to abide the outcome of the intended appeal. The bench of Musinga, Sichaale and Ochieng, JJAA delivered a single unanimous judgment.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable because whether the garnishee orders absolute were irregularly issued without any decree or judgment is a weighty issue not frivolous.

Reasoning

The Court applied the settled rule 5(2)(b) principles, noting that an arguable appeal need not be one that must succeed but only one that is not frivolous or idle. It found the question whether garnishee orders were issued without a valid decree to be weighty and worthy of consideration, while expressly declining to make definitive findings that might embarrass the bench seized of the appeal.

p. 4
02

Nugatory value of the intended appeal

Holding

The appeal would be rendered nugatory if stay is not granted because execution would pay public monies into an individual's account whose ability to refund was not demonstrated.

Reasoning

The Court found that execution of the garnishee orders absolute would transfer public monies to an individual's personal account. Since it was not demonstrated that the individual could refund the money, the substratum of the appeal would be lost and the result irreversible. Both limbs having been satisfied, the motion was allowed.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the Court on both the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
  • On arguability, it is sufficient if a single bona fide arguable ground of appeal is raised; the appeal need not necessarily succeed.
  • An appeal is rendered nugatory where what is sought to be stayed is irreversible, or where damages cannot reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of execution of the Ruling of Abuodha J delivered on 26th November 2024 and the garnishee orders absolute ordering release of Kshs 13,660,701 held in the applicant's KCB Account Number 1107767741, pending the hearing and determination of the intended appeal
  2. 2.The applicant's motion dated 26th November 2024 is allowed as prayed
  3. 3.Costs of the motion to abide the outcome of the intended appeal
On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Court Cause Number 1162 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and the inherent power of the Court

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, "Garissa Water Sewerage Company Limited v National Union of Water and Sewerage Employees & 2 others", Case Analysis (2025). Employment and Labour Relations Cause Number 1162 of 2018 (intended appeal); Civil Application No. [unspecified] of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/108/eng@2025-01-24

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