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Court of AppealDismissedCivil Application (rule 5(2)(b) motion) arising from ELRC Petition; notice of appeal dated 3rd February 2025· [2025] KECA 1582 (KLR)

Cabinet Secretary, Ministry of Defence & Chairperson Defence Council & 1 other v Hassan Aden Osman

Court of Appeal
3 October 2025
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause enforcement of a Kshs 1 million award against the Ministry of Defence because the government never showed the employee couldn't repay it.

What this practically means

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Executive summary

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The Cabinet Secretary for Defence (also Chairperson of the Defence Council) and the Attorney General moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment of the ELRC (Rika, J.) dated 31st January 2025, which found that Hasan Aden Osman's conviction, imprisonment and dismissal from the Kenya Army in 2006 were unlawful, awarded him Kshs 1,000,000 in general damages and his pension, and directed each party to bear their own costs. The applicants' motion, however, was anchored on their pending Civil Appeal No. E441 of 2024 and Civil Application No. E393 of 2024, which challenged the ELRC ruling of 15th March 2024 on the admissibility of two bundles of documents. The respondent did not appear. The Court applied the settled twin test - arguability and nugatory-ness - both of which must be satisfied. It held that the limitation and delay arguments were a red herring, since the time-bar issue had been dealt with in a 2016 ruling by Wasilwa J. that was not under appeal, and that the stay-of-proceedings application had become moot once the ELRC concluded the claim. Critically, the applicants never suggested that the respondent could not refund the award. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicants satisfied the twin principles for stay of execution under rule 5(2)(b)

Holding

The application failed both limbs. The arguability submissions on time-bar and inordinate delay were a red herring because the pending appeal concerned admissibility of evidence, not limitation; and the nugatory limb failed because no assertion was made that the respondent could not refund the award.

Reasoning

The Court applied the settled two-limb test in Stanley Kang'ethe Kinyanjui v Tony Ketter, stressing that both considerations must be met. The pending appeal challenged only the ruling on admissibility of documents; the limitation issue had been determined in an earlier ruling by Wasilwa J. that was not under appeal. On nugatory-ness, the applicants did not suggest the respondent could not refund the Kshs 1,000,000 award, so no irreparable loss was demonstrated.

p. 3
02

Whether the stay application had any practical utility given that the ELRC had already heard and determined the substantive claim

Holding

The stay-of-proceedings application became moot when the ELRC rendered its judgment on 31st January 2025; pursuing the appeal against the ruling of 15th March 2024 served no purpose once the substantive claim was determined.

Reasoning

The applicants did not prosecute either the appeal or the stay-of-proceedings application, allowing the ELRC to conclude the claim. Once judgment was delivered, the relief they sought related to proceedings that no longer existed, and the appeal they sought to preserve concerned the evidentiary ruling rather than the final judgment. The Court could perceive no purpose the applicants could achieve.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy both the arguability and the nugatory limbs; satisfying only one is insufficient.
  • A court cannot presume that a judgment debtor is incapable of refunding a money decree absent an assertion and an opportunity for the decree-holder to respond; without such material the nugatory limb fails.
  • An application for stay of proceedings becomes moot once the trial court has concluded the proceedings and rendered judgment.

Court orders

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  1. 1.The motion on notice dated for stay of execution pending appeal is dismissed
  2. 2.No orders on costs - each party to bear their own costs
On appeal from
Employment & Labour Relations Court, Nairobi
Petition dated 16th January 2014 (judgment of 31st January 2025); related Civil Appeal No. E441 of 2024 and Civil Application No. E393 of 2024 pending before the Court of Appeal
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

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, "Cabinet Secretary, Ministry of Defence & Chairperson Defence Council & 1 other v Hassan Aden Osman", Case Analysis (2025). Civil Application (rule 5(2)(b) motion) arising from ELRC Petition; notice of appeal dated 3rd February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1582/eng@2025-10-03

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