https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1263

Kenya Revenue Authority v Manoti & 2 others (Civil Application E700 of 2025) [2026] KECA 1263 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1263 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E700 of 2025 SG Kairu, P Nyamweya & Katwa Kigen, JJA July 3, 2026 Between Kenya Revenue Authority Applicant and Cliff Bwogo Manoti Respondent and Law Society of Kenya 1st Interested Party Salaries & Remuneration Commission 2nd Interested Party (An application for stay of execution pending the hearing and determination of intended appeal from the judgment of the Employment and Labour Relation’s Court of Kenya at Nairobi (H. Wasilwa J.) delivered on 28th October 2025 in ELRC Cause No. E370 of 2021.) Ruling 1.Kenya Revenue Authority, the applicant herein, seeks to stay execution of a judgment delivered on 28th October 2025 by the Employment and Labour Relations’ Court (ELRC) in Nairobi (H. Wasilwa J.) in Nairobi ELRC No. E370 of 2021, pending the hearing and determination of its intended appeal therefrom. The ELRC, in the said judgment, made an award of Kshs 1,400,000/- less statutory deductions to Cliff Bwogo Manoti, the respondent herein, together with costs of the suit and interest. The respondent had claimed the said sum as payment of his non-practice and prosecutorial allowance from the date of his employment with the applicant to the time of leaving employment on 10th November 2020. 2.The applicant seeks to stay the payment of this award in its Notice of Motion dated 21st November 2025 which is supported by an affidavit sworn on even date by Dr. Emmah Omwenga, its Deputy Commissioner in the Human Resource Division, and submissions dated 5th December 2025 filed by its advocates on record, Nick Otieno Osoro and Pius Nyaga. The respondent opposed the application through a replying affidavit sworn on 17th December 2025 and written submissions dated 20th February 2026 filed by Cliff Bwogo Manoti & Company Advocates. Similarly, the application was opposed by the Law Society of Kenya, the 1st interested party herein, through a replying affidavit sworn on 23rd February 2026 by Florence Muturi, its Chief Executive Officer, and written submissions of even date filed by Adah Atieno & Associates, its advocates on record. 3.We heard the application on 24th February 2026 through this Court’s virtual platform. Learned counsel Mr. Nick Osoro was present for the applicant, while Mr. Cliff Manoti was present in person as the respondent and learned counsel Ms. Ivy Atieno, appeared for the 1st interested party. There was no appearance nor participation by the 2nd interested party, despite its advocates on record being duly served. The counsel present highlighted their respective written submissions dated 5th December 2025, 20th February 2026 and 23rd February 2026. 4.The applicant is in this regard required to satisfy two conditions for an order of stay of execution to be issued by this Court. Firstly, that its intended appeal is arguable, and secondly, that unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory. These requirements were amplified by this Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others [2013] eKLR. The applicant in this respect urged that the intended appeal raised several grounds of appeal with high chances of success, and attached a memorandum of appeal where the four (4) grounds of appeal were raised challenging the holding by the trial Court that Circulars No. MSPS. 10/145A VOL. VII/40 and MPS. 10/5A Vol III/ (78) addressed to the Solicitor General and Director of Public Prosecutions applied to the applicant; the finding that there was discrimination and unfair labour practices and the application of the principle of equal pay for equal work under Article 230 (5) of the Constitution; and its failure to apply section 13 (4) and 16 of the Kenya Revenue Authority Act, which require Parliamentary amendment and Gazette Notice to effect changes in remuneration of the Applicant’s employees. 5.The applicant contended that the trial Court erred in its interpretation of the cited public service circulars and in relying on National Environment Management Authority vs Wabwoto & 3 Others; Law Society of Kenya & 2 Others (Interested Parties) [2025] KECA 276 (KLR), and that the judgment has exposed it to multiple similar claims and continued accrual of interest, occasioning substantial financial prejudice since the allowances in question had not been budgeted for within its statutory framework. The applicant further argued that the respondent had since left its employment, rendering recovery of any sums paid in execution uncertain. According to the applicant, the respondent would suffer no prejudice, injury, or injustice if the orders sought were granted, as he could adequately be compensated by costs and interest, and all his dues would be paid in the event the intended appeal was unsuccessful. 6.The arguments made by the respondent and 1st interested party in opposition were substantially similar. They asserted that the issues raised by the applicant had already been conclusively determined by this Court in National Environment Management Authority vs Wabwoto & 3 Others; Law Society of Kenya & 2 Others (Interested Parties) (supra), wherein this Court held that prosecutorial and non-practising allowances are payable to legal officers performing functions substantially similar to those undertaken by their counterparts in the Office of the Director of Public Prosecutions and the State Law Office. 7.It was further submitted that the public service circulars cited in the applicant’s Memorandum of Appeal were the very circulars that had been the subject of determination in the said decision. Consequently, the applicant, as a statutory public body, was bound by the relevant public service circulars and guidelines intended to harmonise remuneration across the public sector, and was therefore obligated to comply with those directives. Furthermore, since the applicant was bound by the circulars and guidelines given by the Public Service Commission, the changes in the remuneration of the applicant’s employees did not require parliamentary amendment and gazette notice. 8.Accordingly, this Court had already conclusively pronounced itself on all the issues raised by the applicant in its Memorandum of Appeal, and the applicant had failed to identify any bona fide issue of law or fact warranting further appellate consideration and had merely expressed dissatisfaction with the judgment under challenge. 9.As regards the nugatory limb, the respondent and interested party contended that a successful litigant in possession of a valid judgment was entitled to enjoy the fruits of that judgment unless exceptional circumstances exist to justify a stay of execution. In the circumstances, the applicant’s assertions that the funds in question had not been budgeted for or that implementation of the judgment would create inequities among its employees did not constitute exceptional circumstances sufficient to warrant a stay or to deprive the respondent of the benefits of the judgment; and the assertion that the judgment would expose the applicant to multiple similar claims was speculative and did not constitute a valid legal basis for depriving the respondent of the benefits of the judgment. 10.Lastly, that the respondent, being an advocate and the managing partner of his own legal practice, is a person of means, and there was consequently no basis for concluding that he would be unable to refund the decretal sum if the appeal ultimately succeeded. In the alternative, the respondent and 1st interested party averred that should this Court be inclined to grant a stay of execution, it be on condition that the decretal sum be deposited in a joint interest-earning account. 11.We have considered the arguments made by the applicant, respondent and interested party. On the first requirement on arguability, the law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona fide issue that deserves full consideration on appeal. An applicant need not proffer a multiplicity of arguable points and for a point to be arguable it needs merely to raise a bona fide point of law or fact sufficient to call for an answer from the respondent and is worthy of the Court’s consideration. Given this low threshold, we are prepared to accept that the issue raised by the applicant as to whether the cited Circulars No. MSPS. 10/145A VOL. VII/40 and MPS. 10/5A Vol III/ (78) and holding by this Court in National Environment Management Authority vs Wabwoto & 3 Others; Law Society of Kenya & 2 Others (Interested Parties) (supra) on the said circulars applied to it is arguable. We accordingly find that the applicant has demonstrated that the intended appeal is arguable. 12.Turning to the nugatory aspect, this Court stated in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (supra) that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. There was in this respect no indication or evidence of any multiple related suits the applicant alleged it was facing, nor did it controvert the averments that the respondent would be able to compensate it in the event that its intended appeal succeeds, given that the decree in question is a money decree. We are therefore not satisfied that the applicant’s appeal will be rendered nugatory in the event its appeal succeeds. 13.Consequently, although its appeal is arguable, the applicant has not established that the appeal will be rendered nugatory in the event the stay orders that it seeks are not granted. The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 21st November 2025 is accordingly dismissed with costs to the respondent and 1st interested party. 14.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.S. GATEMBU KAIRU, C.ARB, FCIARB.................................JUDGE OF APPEALP. NYAMWEYA................................JUDGE OF APPEAL KATWA KIGEN................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR