https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1016

African Economic Research Consortium v Egesa (Civil Application E006 of 2026) [2026] KECA 1016 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1016 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E006 of 2026 DK Musinga, P Lilan & JO Okello, JJA May 29, 2026 Between African Economic Research Consortium Applicant and Lorian Vincent Egesa Respondent (Being an application for stay of execution of the ex parte order of the Employment and Labour Relations Court at Nairobi (Byram Ongaya, J.) dated 15th December, 2025 in ELRC Petition No. E212 of 2025) Ruling 1.The applicant’s notice of motion dated 7th January, 2026 seeks stay of execution and/or further proceedings of the ex parte order of the Employment and Labour Relations Court at Nairobi dated 15th December, 2025, pending hearing and determination of an intended appeal. The background to the application is that the trial court held in its judgment dated 20th November, 2025, that the suspension of the respondent from his employment without pay was irregular and unconstitutional and ordered release of his withheld remuneration, and further directed that he would continue to be in the applicant’s employment until the lawful termination of his contract of service. 2.Shortly after delivery of the judgment, the applicant’s counsel informally applied for 30 days’ stay of execution pending the filing of a formal application, which was granted, on condition that the applicant pays the respondent the salaries for October and November 2025 by close of business on 24th November, 2025. The applicant complied with that condition and filed the formal application dated 4th December, 2025. 3.In an exparte order of 15th December, 2025, the trial court extended the temporary stay of execution of the judgment pending inter partes hearing of the application on condition that the applicant pays the respondent salaries for the months of December 2025, January and February 2026. This is the order that the applicant wishes to stay. 4.In the applicant’s affidavit sworn by Ms. Esther Mbaka, an official of the applicant in charge of the Human Resource and Administration Department, she states, inter alia, that the applicant was aggrieved with the exparte order of 15th December, 2025; that it has filed a notice of appeal dated 18th December, 2025; and that the applicant had earlier on filed a notice of appeal dated 20th November, 2025 to challenge the judgment and decree dated 20th November, 2025. 5.The applicant contends that its intended appeal is arguable and cites a draft memorandum of appeal that is annexed to the affidavit. The deponent further states that unless this Court grants the orders sought, the respondent shall proceed to execute the impugned judgment and the decree dated 20th November, 2025 to the prejudice of the applicant. 6.The application is opposed. In his replying affidavit, the respondent sets out the background to the application and contends that the applicant, a big multinational organisation funded by several NGOs, is using the court process to frustrate him and break his livelihood by barring him from earning his salary which he is lawfully and contractually entitled to. 7.In his view, the intended appeal is not arguable, and that the intended appeal will not be rendered nugatory if the orders sought by the applicant are not granted. He argues that the amount that the applicant wishes to withhold amounts to nearly Kshs. 3,000,000 before the statutory deductions, being the salary for December 2025, January and February 2026. He states that he is able to repay Kshs. 3,000,000 if the appeal succeeds. He annexed to his affidavit a financial statement of one of his savings accounts and a log book of one of his motor vehicles, whose alleged market value exceeds Kshs. 15,000,000. He therefore urges the Court to dismiss the application. 8.When the application came up for hearing on 10th March, 2026, Mr. Chiuri Ngugi appeared for the applicant, and Mr. K. Kimathi appeared for the respondent. Both counsel relied on their respective client’s written submissions and highlighted them briefly. 9.The principles that guide this Court in an application of this nature are well settled. An applicant must demonstrate that the appeal or intended appeal is arguable, and that unless the orders sought are granted, the appeal, if successful, will be rendered nugatory. See Stanley Kang’ethe vs Tony Keter & 5 others [2013] eKLR. 10.Regarding arguability of an intended appeal, the applicant need not demonstrate a multiplicity of arguable grounds, even one arguable ground would suffice. 11.The draft memorandum of appeal raises seven proposed grounds of appeal. The proposed grounds of appeal relate to the exparte order of 15th December, 2025. The applicant faults the learned judge of issuing exparte orders and imposing unjust terms under the expediency of “the forthcoming Christmas vacation”. It is further contended that the learned judge tilted the scales of justice in favour of the respondent by failing to fix a hearing date for the applicant’s notice of motion dated 4th December, 2025 inter partes, shortly after the end of the December vacation to 24.2.2026, with attached conditions for payment of the 3 months’ salary. 12.In our view, these grounds are not frivolous. They are arguable.We need not say more at this juncture. 13.As to whether the intended appeal will be rendered nugatory, this Court has often stated that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party. Equally, the term nugatory does not necessarily mean worthless, futile or invalid. It also means trifling, that is, important or of little value. See Reliance Bank Ltd vs Norlake Investments Ltd [2002] 1 EA 227. 14.The respondent contends that he is able to repay the sum of Kshs. 3,000,000 in the event that the intended appeal is successful. His bank statement that he annexed to his affidavit showed a balance of Kshs.1,007,290 as at 22nd January, 2026. He also annexed thereto a copy of a Toyota Land Cruiser, registration No. KDU 440T which he said is worth more than Kshs. 15,000,000. However, nothing stops the respondent from disposing of the motor vehicle before the intended appeal is heard and determined, and the amount in the respondent’s bank account may also be depleted. If the respondent is paid the amount in contention and continues to be paid his salaries and is unable to refund the same in the event the appeal succeeds, then the appeal would be rendered nugatory. 15.To balance the interests of justice in this matter, we are of the considered view that a conditional stay of execution would be appropriate. We therefore grant the orders sought on condition that the applicant deposits a sum of Kshs. 2,000,000 in an interest earning account in the joint names of the applicant’s and respondent’s counsel pending hearing and determination of the intended appeal. The appeal should be filed and served within 30 days from the date hereof.Each party shall bear their own cost of this application. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.D. K. MUSINGA (PRESIDENT)...................................JUDGE OF APPEALP. LILAN...................................JUDGE OF APPEALDR. J. O. OKELLO...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.