Albeity Logistics Limited & another v Kilonzo (Suing as the Administrator and Personal Representative of the Estate of Benjamin Kyalo Masila– Deceased) (Civil Application E103 of 2024) [2025] KECA 773 (KLR)
The bottom line
#Kenya's Court of Appeal paused enforcement of a Kshs.982,080 workplace injury award, ruling the appeal raises serious questions about whether the employment court had jurisdiction.
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 and not frivolous
- 2.Whether the appeal, if not stayed, would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable and not frivolous, including the jurisdictional challenge to the ELRC's power to enforce WIBA awards.
Applying the Kang'ethe Kinyanjui principles, the Court found the questions raised — whether the ELRC may enforce Director's awards when Section 52(2) of WIBA provides only an appeal avenue, exhaustion of avenues, and lifting of the corporate veil — suffice to render the appeal arguable.
Nugatory-ness and jurisdictional overreach
A stay is warranted because if the ELRC lacked jurisdiction to enforce the Director's award, the resulting execution would be irreversible.
Beyond the apprehended contempt proceedings against the 2nd applicant, the central concern was that the ELRC may have assumed jurisdiction it does not possess; an order made without jurisdiction cannot be undone by damages, so the subject matter must be preserved pending appeal.
Preliminary objection that the application is res judicata
The objection was rejected because the impugned ELRC ruling is the very decision under appeal.
Res judicata cannot attach where the ruling said to have determined the matter is itself the subject of the intended appeal; the stay application is directed at preserving that ruling's execution, not re-litigating it.
Legal principles established
#- An application for stay is granted where the intended appeal is arguable and where, if execution proceeds, the appeal would be rendered nugatory — irreversible outcomes or outcomes not compensable in damages warrant a stay.
- Where the appeal challenges the lower court's jurisdiction, a stay will be granted because an order made without jurisdiction is irreversible.
Court orders
#- 1.Stay of execution of the ruling of the ELRC delivered on 9th May 2024 in Miscellaneous Application No. E004 of 2024 pending the hearing and determination of the applicants' appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Miscellaneous Application No. E004 of 2024
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over intended appeal from the ELRC (Article 164(1)(a) of the Constitution, cited via Article 162(2) jurisprudence); interlocutory stay jurisdiction
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.
we are satisfied that the intended appeal is not frivolous. It is indeed arguable.
whether an appeal will be rendered nugatory, depends on whether what is sought to be stayed, if allowed to happen is irreversible, or, if it is not reversible, whether damages will reasonably compensate the party aggrieved.
the application dated 13th September 2024 is hereby allowed and the ruling of the ELRC delivered on 9th May 2024 in Miscellaneous Application No. E004 of 2024 between the parties hereto is hereby stayed pending the hearing and determination of the applicants' appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albeity Logistics Limited & another v Kilonzo (Suing as the Administrator and Personal Representative of the Estate of Benjamin Kyalo Masila– Deceased) (Civil Application E103 of 2024) [2025] KECA 773 (KLR)", Case Analysis (2025). Miscellaneous Application (Stay) — application dated 13th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/773/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.