https://new.kenyalaw.org/akn/ke/judgment/keca/2026/915

Judicial Service Commssion v Wasamu (Civil Application E078 of 2025) [2026] KECA 915 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 915 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E078 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between The Judicial Service Commssion Applicant and Samuel Opondo Wasamu Respondent (An application for stay of execution of the Judgement and Decree of the Employment and Labour Relations Court at Mombasa (Monica Mbaru, J.) delivered on 24th July 2025 in Mombasa ELRC No. E077 of 2024) Ruling 1.The respondent, Samuel Opondo Wasamu, sued the applicant, Judicial Service Commission, before the Employment and Labour Relations Court (the ELRC) in Cause No. E077 of 2024 alleging unfair termination from his position of Court Assistant II. At the time of the termination, he was based at Kwale Law Courts. The learned Judge (Mbaru, J.) found that the respondent’s termination of employment was justified, but that he was entitled to payment of Kshs.1,123,500, which was half of the salary accrued during the suspension period. Each party was ordered to bear its own costs. 2.Aggrieved, the appellant filed a Notice of Appeal dated 25th July 2025 expressing its intention to challenge the decision of the ELRC. Subsequently, the applicant filed the instant Notice of Motion dated 26th August 2025 seeking, inter alia:i.that this Court be pleased to grant an order of stay of execution of the judgement and decree of Lady Justice Monica Mbaru delivered on 24th July 2025 in ELRC Cause No. 77 of 2024 awarding the respondent half salary during the period of suspension pending hearing and determination of the intended appeal; andii.that costs do abide the outcome of the intended appeal. 3.The application is supported by the affidavit of Hon. Winfrida Mokaya, the applicant’s Secretary and the Chief Registrar of the Judiciary, who deposed that the trial court dismissed the respondent’s allegation that he was unfairly dismissed, but proceeded to award him a half monthly salary as compensation for the period when he was in suspension amounting to Kshs.1,123,500; that the learned Judge, in awarding the half salary, failed to appreciate that the respondent, being a judicial staff, was subject to the provisions of Paragraph 17(3) of the Third Schedule of the Judicial Service Act Cap. 8A, which grants the applicant the discretion to determine the amount of alimentary allowance payable during the period of suspension; and that the respondent was indeed informed of the measures that the applicant was to undertake during the period of suspension, more so that it would pay him an alimentary allowance equivalent to one third of his basic salary pending conclusion of the disciplinary process. 4.The applicant proposed that the grounds of appeal which it would be arguing on appeal are, among others, that the learned Judge erred: in holding that the appellant was liable to pay the respondent half salary during the period of suspension, despite finding that the dismissal was fair and lawful; in failing to apply the provisions of paragraph 17 (3) of the Third Schedule of the Judicial Service Act, which vests discretion in the appellant to determine the amount and terms of alimentary allowance payable during suspension; in disregarding the terms of the respondent’s suspension letter dated 30th July 2021, which provided for an alimentary allowance equivalent to one third of the respondent’s basic salary; and in disregarding the statutory provisions and decisions of the Court of Appeal in arriving at her decision. 5.The applicant deposed that, being a constitutional commission funded by public resources, if execution proceeds, the prayers sought will be rendered nugatory as the respondent will not be in a position to refund the decretal sum as he has no known assets or other source of income other than the previous employment by the applicant. 6.Opposing the application, the respondent filed a replying affidavit sworn on 5th September 2025. He deposed that the basis of the application is that the provisions of the schedules of the Judicial Service Act supersede the provisions of the Employment Act and Article 41 of the Constitution insofar as labour relation matters are concerned, but that the right to fair labour practices is aptly enshrined in the Constitution, and is so sacrosanct that the schedules to the Judicial Service Act cannot override them. He further deposed that the learned Judge rightly held that, in accordance with Section 18(4) of the Employment, upon summary dismissal, the employee is entitled to terminal dues accrued; that the intended appeal is not arguable since this Court would be sitting to make a determination as to what between an Act of Parliament on the one hand and the Schedules/manuals of the Judicial Service Act, on the other, take precedence in law; and that, it beats logic to challenge the award of the accrued dues on appeal whereas the basis of the award is hinged in law. 7.The respondent stated that one Ms. Fahima appearing for the applicant undertook to pay the decretal sum within thirty (30) days, hence the applicant has approached this Court with unclean hands; that the Court must balance the decree holder’s right to enjoy the fruits of the judgement with the judgement debtor’s potential rights of likelihood of suffering irreparable harm suffered if stay is not granted, as well as the need to deposit security for the decretal amount; that the applicant has neither shown nor provided any evidence of the harm it is likely to suffer if stay is not granted; and that, therefore, the intended appeal is not likely to be rendered nugatory if stay is not granted. 8.We were urged to dismiss the application with costs. 9.We heard this application on 9th December 2025. Learned counsel Mr. Mansur Issa appeared alongside Ms. Fahima for the applicant while learned counsel Mr. Otieno appeared for the respondent. 10.We must observe that none of the parties’ submissions are before us. The applicant’s counsel uploaded what it believed to be its written submissions but, in essence, it is a List of Authorities and the authorities themselves. As for the respondent, counsel uploaded submissions on a Preliminary Objection in a totally different matter, that is PPDTC No. E011 of 2025 - Amina Enow Omar & Another vs United Democratic Party. Nonetheless, each counsel orally highlighted their respective arguments which we have taken to mind. In a nutshell, both counsel basically rehashed their respective parties’ case as outlined in the affidavit in support of the application and the replying affidavit, for which reason we need not rehash the oral submissions. 11.It suffices to state that the applicant’s counsel cited 8 judicial authorities, namely Nairobi City Council vs. Tom Ojienda & Associates (2022) KECA 1326 (KLR); Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others(2013) KECA 378 (KLR);Kwale International Sugar Company Limited vs. EPCO Builders Limited & 2 others on the jurisdiction of this Court in an application under rule 5(2)(b); Chief Justice and President of the Supreme Court of Kenya & another vs. Khaemba (2021) KECA 322 (KLR); and Grace Gacheri Muriithi vs. Kenya Literature Bureau (2012) KEELRC 135 (KLR), for the position that the applicant acted within the law in determining the amount of alimentary allowance that the respondent was to be paid during the period of the suspension; Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others (supra); and Teachers Service Commission vs. Sarah Nyanchama Ratemo (2014) KECA 836 (KLR) for the proposition that the appeal would be rendered nugatory if stay is not granted; and Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet (2017) KECA 240 (KLR) for the position that it is in public interest that the order sought is granted since, if the decretal sum is released, and the appeal succeeds, it would be difficult to recover the funds. 12.The respondent, as appears in the replying affidavit, relied on the decision in Stanley Kangethe (supra), deposing that the applicant has not satisfied the twin principles under rule 5(2)(b) to warrant grant of a stay order; and Murandula Suresh Kantaria vs. Suresh Nanalal Kantaria, Civil Appeal No. 227 of 2005 (unreported) where the Court held that ‘ the overriding principle is not a panacea for all ills and in every situation, and that proper basis must be laid before the Court can invoke the same in favour of a party. In exercising the power to give effect to the principle, the Court must do so judicially and with proper and applicable foundation.’; and that, in this case, the applicant has not demonstrated the basis upon which we should exercise our discretion to grant the order sought. 13.We have considered the Motion, the affidavit in support of, and in opposition to, the application, the respective parties’ oral submissions, the authorities cited and the law. The only issue that falls for our determination is whether the applicant has met the threshold for grant of an order of stay of execution under rule 5(2)(b) of this Court’s Rules. 14.The oft cited decision of Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others (supra) highlighted the twin principles under rule 5(2)(b), namely that the applicant has to demonstrate that the appeal or the intended appeal is arguable and, absent stay, the appeal or the intended appeal will be rendered nugatory. 15.In Trust Bank Limited & Another vs. Investech Bank Limited & 3 Others 2000 (KECA) 11 (KLR), this Court held that:“The jurisdiction of the court under rule 5(2) (b) aforestated, is original and discretionary, and it is trite law that to succeed an applicant has to show firstly, that his appeal or intended appeal is arguable, or put another way, it is not frivolous; and secondly, that unless he is granted a stay the appeal or intended appeal, if successful, will be rendered nugatory. Those are the guiding principles but these principles must be considered against the facts and circumstances of each case, ……” 16.In further determining whether an appeal is arguable, we are minded that even a single bona fide ground of appeal which is worth being argued before a full bench will suffice, as was held by this Court in Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd & 2 others (2009) KECA 201 (KLR); and Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd, Civil Application No Nai. 345 of 2004. 17.We have perused the proposed grounds of appeal as drafted in the undated Memorandum of Appeal. The applicant raises, among other grounds, that the Judge erred in law and in fact in ordering that the respondent be paid half of the salary withheld during the suspension period without appreciating the provisions of Paragraph 17(3) of the Third Schedule of the Judicial Service Act, Cap. 8A, which gives the applicant the discretion to determine the amount and terms of alimentary allowance payable during the suspension; and that the learned Judge disregarded the terms of the respondent’s suspension letter dated 30th July 2021, which provided for payment of alimentary allowance equivalent to one third of the respondent’s basic salary in accordance with the Judicial Service Act. In our view, these are sufficiently arguable grounds which are not idle, and they warrant a hearing before a full bench of this Court. 18.As to the second limb, whether absent stay the intended appeal will be rendered nugatory, this Court in Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another (2006) KECA 333 (KLR) held that:“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.” 19.In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties, and each case is to be determined on its merits. The applicant states that, if execution is to ensue, it will not be able to recover its decretal sum since the financial capabilities of the respondent are unknown. The respondent did not rebut this allegation. The issue at stake is payment of Kshs.1,123,500 awarded to the respondent as half salary accrued during the suspension period. In the absence of rebuttal from the respondent that he is able to repay the decretal sum if paid to him, it behoves us to protect the subject matter of the appeal. 20.We also take to mind that the applicant is a corporate body which is also obligated to protect and safeguard, and ensure prudent use of, public funds. Paying the decretal sum to the respondent would be tantamount to putting at risk public funds whose recovery would be in jeopardy. Further, and for the same reason, the release and recovery of public funds allocated to a corporate body such as the applicant requires compliance with rigorous processes. Hence, failure to grant a stay would heavily prejudice the applicant as recovery of the funds in the event that the appeal succeeds would be tedious and time consuming. The failure to grant a stay would definitely render the intended appeal nugatory and an academic exercise. 21.It follows that the applicant has sufficiently demonstrated the two limbs under rule 5(2)(b) of this Court’s Rules, which limbs must be satisfied conjunctively to warrant grant of stay. 22.Accordingly, the Notice of Motion dated 26th August 2025 is hereby allowed in the following terms:a.An order of stay of execution of the judgement and decree of Mbaru, J. delivered on 24th July 2025 in ELRC Cause No. 77 of 2024 awarding the respondent half salary during the period of suspension be and is hereby granted pending the hearing and determination of the intended appeal.b.Costs shall be in the appeal. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR