East Africa Portland Cement PLC v Kaleve & 2 others (Civil Application E197 of 2024) [2025] KECA 515 (KLR)
The bottom line
#The Court of Appeal refused to pause enforcement of a KSh 14 million employment award because the money had already been paid out to the former employees.
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 court can grant stay of execution of the judgment dated 14th February 2024 and the ruling of 21st November 2024 pending the hearing of the appeal
- 2.Whether the appeal is arguable
- 3.Whether the appeal will be rendered nugatory if stay is not granted, given that the decretal sum deposited in court has allegedly been released to the respondents
Key legal issues
#Whether the ruling of 21st November 2024 could be stayed
The ruling was a negative order dismissing the applicant's application and no notice of appeal was filed against it; it cannot be stayed.
The court noted no notice of appeal was filed against the 21st November 2024 ruling, and that the ruling merely dismissed the applicant's own application. Consistent with its settled jurisprudence (Sonalux v Barclays Bank), a negative order is incapable of execution and therefore not amenable to stay. This limb of the motion failed outright.
Whether the appeal is arguable
The appeal is arguable: the intended issue whether the terms of a Collective Bargaining Agreement continue to bind parties after expiry of its term, contrary to section 59(1) and (3) of the Labour Relations Act, is bona fide and deserving of consideration.
Applying the settled test, arguability does not require certainty of success; a single bona fide point suffices, subject to the nugatory condition. The court found the intended challenge to the trial court's holding on the continuing binding effect of a CBA after expiry of its term, vis-à-vis sections 59(1) and (3) of the Labour Relations Act, to be a real issue worth consideration.
Whether the appeal would be rendered nugatory absent a stay
No, because there was prima facie evidence that the decretal sum had been released to the respondents' advocates on 10th December 2024, leaving nothing to which a stay could attach.
The burden was on the applicant to show the substratum of the application still existed. The respondents asserted the deposited funds had been released on 10th December 2024; the applicant only challenged the documentation rather than confirming the funds' status with the Registrar. On the Uzuri Foods principle, where the money is gone, a 'don't release' order would serve no purpose, so the appeal could not be rendered nugatory.
Legal principles established
#- A negative order dismissing an application is incapable of being executed and is not amenable to an order of stay
- The burden lies on the applicant for stay to prove that the conditions for the order exist and are fulfilled, including that the substratum of the application still exists at the hearing
- A single bona fide arguable point suffices to satisfy the arguability condition for stay; success need not be certain
- Where the decretal sum has already been released, no stay can issue because the appeal cannot be rendered nugatory
Court orders
#- 1.Dismissal of the notice of motion dated 27th November 2024
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated
- Jurisdiction invoked
- Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Stay of execution of the judgment dated 14th February 2024 and the ruling of 21st November 2024 pending the hearing of the appeal
The ruling of 21st November 2024 was a negative order incapable of being stayed, and the decretal sum deposited in court had already been released, so the appeal would not be rendered nugatory
Costs
We dismiss the application with costs to the respondents.
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.
no notice of appeal was filed against that ruling. In any case, that ruling dismissed an application by the applicant, hence was a negative order which this Court has held many times is incapable of being executed and therefore is not amenable to an order of stay.
what makes an appeal arguable is not the certainty of its success but whether the issues to be raised are bona fide and worth of consideration by the Court.
Before us there is prima facie evidence that the decretal sum was released to the respondents’ advocates on 10th December 2024. In the circumstances, the applicant has failed to persuade us that unless we grant the stay sought, the appeal, if successful, will be rendered nugatory.
We dismiss the application with costs to the respondents. It is so ordered.
Issues in the judgment
#The judgment contains inconsistent dates for the ELRC judgment: the motion seeks stay of a judgment 'dated 14th February 2024' while the grounds describe a judgment delivered on '14th February 2020', and the respondent refers to 'no judgement delivered on 24th February 2024'
The court states it would quote the conditions for stay from Uzuri Foods ('this Court set out the conditions that are required to be satisfied before a stay of execution can be granted and stated as follows:') but the quoted passage that follows in paragraph 11 concerns the nugatory aspect rather than a list of conditions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East Africa Portland Cement PLC v Kaleve & 2 others (Civil Application E197 of 2024) [2025] KECA 515 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/515/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.