Towfiq Kenya Limited v Wandika (Civil Application E022 of 2025) [2025] KECA 1822 (KLR)
The bottom line
#Kenya's Court of Appeal paused execution of a Kshs 252,474 employment award against Towfiq Kenya Ltd, but only on condition the money is first deposited in a joint account.
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 applicant has an arguable appeal
- 2.Whether, unless stay is granted, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The 8 grounds of appeal were arguable and not frivolous, satisfying the first limb of the rule 5(2)(b) test.
The court held that the grounds advanced could not be wished away as undeserving of scrutiny, but expressly declined to pronounce on the merits. Whether the appeal would succeed was not for the court to judge at the stay stage; it sufficed that the grounds were not frivolous and merited full argument.
Nugatory value and conditional stay
The applicant satisfied the nugatory limb, and since the respondent showed no ability to refund the decretal amount, stay was granted on condition that the decretal sum of Kshs. 252,474 be deposited in a joint interest-earning account within 14 days, failing which stay lapses.
The applicant risked attachment and sale of properties, eroding the substratum of the appeal. The respondent made no attempt to demonstrate ability to refund the decretal amount if the appeal succeeded, which called for a conditional stay with security. Execution was stayed pending the intended appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay; an arguable appeal need not succeed, it suffices that it is not frivolous and raises even one triable issue.
- An arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully; it is sufficient even if the appeal raises only one triable issue.
- Where a judgment-debtor seeking stay has not shown the decree-holder's ability to refund the decretal amount if the appeal succeeds, a conditional stay with security is appropriate.
Court orders
#- 1.Execution of the judgment and decree of the ELRC (Ocharo Kebira, J) delivered on 6th March 2025 stayed pending hearing and determination of the applicant's intended appeal
- 2.The applicant to furnish security by depositing the decretal amount of Kshs. 252,474 in an interest-earning account in the joint names of counsel for the applicant and for the respondent within 14 days, failing which the stay orders shall stand vacated
- 3.The 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 at Mombasa
- ELRC Appeal No. E119 of 2023
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
a. Execution of the judgment and decree of the ELRC (Ocharo Kebira, J) delivered on 6th March 2025 be and is hereby stayed pending hearing and determination of the applicant's intended appeal;
we find that the applicant has satisfied the conjunctive twin principles for grant of the orders sought.
an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully. Further, it is suficient even if the appeal raises only one triable issue.
the respondent has not made any attempt to demonstrate his ability to refund the decretal amount in the event the appeal succeeds, which calls for consideration of a conditional stay.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Towfiq Kenya Limited v Wandika (Civil Application E022 of 2025) [2025] KECA 1822 (KLR)", Case Analysis (2025). Court of Appeal Application, Mombasa (Civil Application) – Notice of Motion dated 19th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1822/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.