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Court of AppealDismissedCivil Application No. E376 of 2025· [2026] KECA 1803 (KLR)

Tracom Services Limited v Rose Wanja Mutuah

Court of Appeal
25 September 2026
PKP. O. KIAGEAMA. O. MUCHELULEPLP. LILAN
1,555 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause execution of a Kshs.9 million employment award because the employer showed no evidence the employee couldn't refund the money.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi dismissing a motion dated 24th June 2025 by Tracom Services Limited seeking stay of execution of a judgment of the Employment and Labour Relations Court (Nzioki Wa Kamau, J.) delivered on 16th November 2023 in ELRC Cause No. 767 of 2021, in which Rose Wanja Mutuah was awarded Kshs.8,963,154.92 after set-off of unpaid commissions against one month's salary in lieu of notice. The applicant, having lodged a Notice of Appeal, argued that the intended appeal was arguable - contending the trial Judge awarded commissions without a contractual commission structure or sufficient evidence and misapplied the burden of proof - and that execution, including potential attachment of its servers, would render the appeal nugatory, with no assurance of refund by the respondent. The respondent countered that execution had been frustrated, that she was employed and able to refund, and challenged the competence of the Notice of Appeal. Applying the settled twin cumulative test under Rule 5(2)(b), the Court found the appeal arguable on a single bona fide point but held the applicant failed the nugatory limb: it laid no factual basis for the respondent's alleged inability to refund the money decree, and her assertion of financial capability was unchallenged. The motion was dismissed with costs to the respondent. The decision below was not disturbed; the ruling binds no lower court beyond its discretionary application of Rule 5(2)(b) principles.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - a single bona fide arguable point suffices; the challenge to the award of unpaid commissions without a contractual commission structure and on burden of proof sufficed

Reasoning

The court reiterated that an arguable appeal need not be one that must succeed; it is enough that a single bona fide issue worthy of consideration is disclosed. The applicant's contention that the trial Judge awarded Kshs.9,224,816.58 in unpaid commissions absent a contractual commission structure and despite insufficient evidence raised such a point, without expressing any concluded view on the merits.

p. 8
02

Whether the appeal would be rendered nugatory if stay is withheld

Holding

No - the applicant failed to discharge its burden on the nugatory limb for a money decree

Reasoning

The decree is a money decree; the applicant had to lay a reasonable basis for apprehending the respondent's inability to refund. It merely asserted she was an individual without adducing evidence of her financial means, and its claim of irreparable business prejudice from attachment of servers was unsupported. The respondent deposed she was employed and capable of refunding, which was not materially challenged.

p. 10

Legal principles established

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  • Rule 5(2)(b) stay jurisdiction is discretionary and requires the applicant to satisfy cumulatively both the arguability and nugatory limbs
  • For a money decree, the applicant must lay a factual basis for alleging the respondent's inability to refund before the evidential burden shifts to the respondent

Court orders

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  1. 1.The Notice of Motion dated 24th June 2025 is dismissed with costs to the respondent
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 767 of 2021
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules

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, "Tracom Services Limited v Rose Wanja Mutuah", Case Analysis (2026). Civil Application No. E376 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1803/eng@2026-09-25

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