https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1093

Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E096 of 2025) [2026] KECA 1093 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1093 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E096 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA June 12, 2026 Between Nicholas Mbugua 1st Applicant Grace Nyambura 2nd Applicant Kenya Long Distance Truck Drivers & Allied Workers Union 3rd Applicant and Roman Waema 1st Respondent Lucy Kanyi 2nd Respondent Ahmed Omar 3rd Respondent (An Appeal against the Judgment and Decree of the Employment and Labour Relations Court at Mombasa (M. Mbaru, J.) on 30th April 2025 delivered in Mombasa ELRC. Petition No.8 of 2020) Ruling 1.The Applicant’s Notice of Motion dated 29th October 2025 is brought pursuant to Rule 5(2) (b), 43 and 44 of the Court of Appeal Rules, 2022, Section 1A, 1B and 3A of the Civil Procedure Rules seeking, inter alia: that this Court be pleased to grant an order stay of execution of judgement and all consequential orders delivered on 30th April 2025 in Mombasa Employment and Labour Relations Court Petition No. 8 of 2020 pending the lodgment, hearing and determination of the intended appeal, and that costs be provided for. 2.The Applicants’ Motion is made on the grounds that the Applicants, being dissatisfied with the entire judgment delivered on 30th April 2025, intend to lodge an appeal. A Notice of Appeal has been duly filed and served, and a request for certified typed proceedings has similarly been filed and served. 3.It was contended that this matter arose from Petition No. 8 of 2020 filed before the Employment and Labour Relations Court at Mombasa by the Respondents, who were registered members and elected officials of the Mombasa Branch of the Kenya Long Distance Truck Drivers & Allied Workers Union, the 3rd Applicant; that the Respondents were elected during branch elections held on 1st February 2016 and subsequently held various branch and national positions within the Union; that the Petition was prompted by events leading to the alleged dissolution of the Mombasa Branch of the 3rd Applicant; that the dissolution was undertaken by the 1st and 2nd Applicants—being national officials of the union—without following the procedures set out in the Union Constitution, the Labour Relations Act, and the principles of natural justice. They maintained that no valid notice was issued; that no lawful meeting was convened; and that the branch membership was neither consulted nor afforded a hearing before the dissolution. 4.The Applicants further contended that the judgment ordered as follows:“i)A declaration that the dissolution of the Mombasa Branch of the 4th Respondent was unprocedural and hence illegal, null and void;ii)A declaration that the Respondents jointly and severally violated the constitutional rights of the Petitioners;iii)An award of Kshs. 2,000,000 in damages to the Petitioners, payable personally by the 1st, 2nd and 3rd Respondents;iv)An order directing the 5th Respondent to attend and inspect all bank account(s) held by the 4th Respondent, including Sidian Bank of Kenya Account No. 010xxxxxxxxxxx, since 2016, render an audit, and submit a report to court within sixty (60) days at the cost of the 4th Respondent;v)An award of costs to the Petitioners; andvi)A mention scheduled for 30th June 2025”. 5.The Applicants asserted that the intended appeal is arguable and has high chances of success as set out in the draft Memorandum of Appeal in that: unless this application is urgently heard and determined, the Respondents are likely to proceed with execution of the judgment to the detriment of the Applicants, as they will suffer irreparable loss and damage since recovery of the sums paid would be unlikely should the appeal succeed; the Respondents have failed to demonstrate their ability to refund the sums awarded; that, further, the intended appeal will be rendered nugatory unless a stay of execution of the judgment is granted; that, in the interest of justice, the subject matter hereof be preserved pending hearing and determination of the intended appeal;; and that the Respondents will not suffer any prejudice if the orders sought are granted. 6.The motion is supported by the sworn affidavit of Nicholas Mbugua, the Applicant, and the Applicants written submissions which largely reiterated the grounds of the application, save to add that, in the unlikely event that the appeal fails to succeed, he shall be able and capable of paying the decretal sum to the Respondents for the reason that he owns a prime piece of land situated in Machakos, being LR No. Donyo Sabuk/Komarock Block 1/84650, measuring 0.0331 Ha, with a market value of Kshs. 1,000,000 as per the annexed copy of the title deed. He further deposes that Bermuda Valuers conducted an extensive valuation of the property and confirmed that the open market value of the property, including all the developments thereon, currently stands at Kshs. 1,000,000. 7.Annexed to the application is a Notice of Appeal dated 29th October 2025 and a Memorandum of Appeal raising grounds that the learned Judge was in error: in failing to appreciate and properly evaluate the evidence adduced by the Appellants during the trial, thereby rendering a judgment that is unsound in principle and not a true reflection of the evidence on record; in failing to recognize that the petition did not raise any matter relating to a constitutional violation; and in failing to consider the jurisprudential issue as to whether the petition was time-barred due to the Respondent’s failure to file an appeal to the Delegates Conference within thirty (30) days as stipulated under clause 10(e) of the 3rd Applicant’s Constitution despite the NEC meeting having been held on 22nd September 2018 and no appeal having been filed, among other grounds. 8.Submitting orally for the Respondents, counsel begun by stating that no proper Notice of Appeal was filed; and that no leave was obtained to file the Notice of Appeal dated 29th October 2025, which was filed out of time. It was submitted that, in any event, the appeal was not arguable. 9.On the nugatory aspect, it was submitted that there was no imminent risk of execution underway and, therefore, the intended appeal would not be rendered nugatory. 10.At the outset, it is observed that the Respondents have raised a question on whether this Court has jurisdiction to hear the application for the reason that no valid Notice of Appeal has been filed by the Applicants. 11.It is trite law that, to invoke the jurisdiction of this Court under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, an applicant requires to have filed a valid Notice of Appeal. The provision specifies that:“…in any civil proceedings where a notice of appeal has Been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just” 12.It is upon the lodging of a Notice of Appeal that this Court may be vested with jurisdiction to issue an order of stay of execution, injunction, or stay of further proceedings. 13.In the case of Safaricom Limited vs Ocean View Beach Hotel Limited & 2 Others [2010] eKLR, the Court stated:“Under Rule 5 (2) (b), the Court is entitled to give a preservative order where a notice of appeal has been lodged. It has been said time without number that in an application under Rule 5 (2) (b) what gives the Court the jurisdiction to hear and determine the motion is the filing of the notice of appeal…At the stage of determining an application under Rule 5(2) (b)there may be no actual appeal. Where there is no actual appeal already lodged there nevertheless must be intention to appeal which is manifested by lodging a notice of appeal. If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2) (b) because as I have already pointed out the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgement of the notice of appeal the Court of Appeal would have no business to meddle in the decision of the High Court.” 13.Addressing the mandatory requirement to file and serve a Notice of Appeal, the Supreme Court in the case of University of Eldoret and another vs. Hosea Sitienei and three others [2020] eKLR observed at para 36:“The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.” 14.In the case of Equity Bank Limited vs West Link Mbo Limited [2013] KECA 320 (KLR), this Court emphasized that, without a valid Notice of Appeal, there is no basis upon which the Court can exercise its jurisdiction under Rule 5(2)(b). 15.In the instant case, the question arises as to whether a valid Notice of Appeal was filed by the Applicant. Under Rule 77 of the Court of Appeal Rules, 2022, the Applicants were required to lodge a Notice of Appeal within fourteen (14) days, that is, it should have been filed on or before 14th May 2025. The record shows that the Judgment sought to be appealed from was delivered on 30th April 2025, and that a Notice of Appeal was filed on 29th October 2025, giving rise to a delay of approximately 168 days, about five and a half months. As a consequence, it cannot be said that the Applicants had filed a valid Notice of Appeal. 16.Given that there is no valid Notice of Appeal on record, and there being no evidence that leave was granted to file the Notice out of time, we find that we have no jurisdiction to determine this application for stay of execution brought under Rule 5 (2) (b) of the Court’s Rules, and for this reason, we must down our tools. See Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited [1989] KLR 1. 17.In sum, the Notice of Motion dated 29th October 2025 is hereby struck out with costs to the Respondents. 18.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF JUNE, 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