Attorney General v Kunga & another (Civil Application E170 of 2024) [2025] KECA 1092 (KLR)
The bottom line
#Kenya's Court of Appeal halted payment of Kshs.1.35 million in employment awards because the winning employees couldn't prove they could refund the money if the school's appeal succeeded.
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
- 2.Whether the appeal would be rendered nugatory absent a stay of execution
Key legal issues
#Whether the intended appeal is arguable
The points on procedure of termination under the Employment Act, payment in lieu of notice already received, quantum of compensation and applicability of a CBA are arguable points worthy of consideration.
The court applied the standard from Stanley Kinyanjui v Tony Ketter that arguability does not require proof that the appeal will succeed, only that the point is not frivolous. The proposed grounds on the Employment Act procedure, double payment of notice pay, excessive compensation and CBA applicability were found to be real points for the full court.
Whether the appeal would be rendered nugatory absent stay
Yes - the respondents did not show ability to refund the decretal sums if paid, so the nugatory principle was satisfied.
The applicant said public funds would be used and the respondents could not refund Kshs.229,698 and Kshs.1,120,724 if the appeal succeeded. The respondents, who bore the shifted burden, did not demonstrate refund capacity, instead complaining about obstruction of execution.
Legal principles established
#- An applicant for stay of execution under Rule 5(2)(b) must show an arguable appeal and that the appeal will be rendered nugatory absent stay.
- Once an applicant asserts the respondent cannot refund the decretal sum, the burden shifts to the respondent to show ability to refund if the appeal succeeds.
Court orders
#- 1.Stay of execution of the judgment in Meru ELRC No. E008 of 2023 consolidated with Cause No. E012 of 2023 pending hearing and determination of the appeal
- 2.Costs of the Motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Meru
- Cause No. E008 of 2023 (consolidated with E012 of 2023)
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Appellate Jurisdiction Act and Rules 5(2)(b) and 49(4) of the Court of Appeal Rules, 2022
- Consolidated with
- Meru ELRC Cause No. E012 of 2023
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 have seen and considered written submissions filed in favour of or in opposition to the application.
For an applicant to succeed it must firstly demonstrate that the appeal or intended appeal, as the case may be, is arguable, which is the same as saying that it is not frivolous.
The applicant has satisfied the principles that apply in an application for stay of execution pending appeal.
We find the Motion to have merit and we allow it. There shall be a stay of execution of the judgment in Meru ELRC No. E008 of 2003 consolidated with Cause No. E012 of 2023 pending hearing and determination of the appeal. Costs of the Motion will be in the appeal.
Issues in the judgment
#The judgment inconsistently refers to the ELRC cause as No. E008 of 2023 in the opening paragraph but as No. E008 of 2003 in the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Kunga & another (Civil Application E170 of 2024) [2025] KECA 1092 (KLR)", Case Analysis (2025). Civil Application (Nyeri) - Rule 5(2)(b) application arising from Meru ELRC Cause No. E008 of 2023 consolidated with Meru Cause No. E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1092/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.