https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1210

National Syndemic Diseases Control Council v Nyamolo (Civil Appeal (Application) E660 of 2025) [2026] KECA 1210 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1210 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E660 of 2025 F Tuiyott, L Ndolo & AI Hassan, JJA June 26, 2026 Between National Syndemic Diseases Control Council Appellant and Kenneth Oluoch Nyamolo Respondent (Being an application for stay of execution pending appeal from the Judgment of the Employment & Labour Relations Court at Nairobi (Nduma Nderi, J.) dated 25th September 2025 in ELRC Petition No. E102 of 2024) Ruling 1.Before us is a notice of motion dated 10th November 2025 in which National Syndemic Diseases Control Council (the applicant) seeks an order for stay of execution pending hearing and determination of an intended appeal of the judgment of the Employment & Labour Relations Court at Nairobi (Nduma Nderi, J) (as he then was), dated 25th September 2025. Kenneth Oluoch Nyamolo is the respondent herein. 2.The application is brought under Rule 5(2)(b) of the Court of Appeal Rules (the Rules of this Court) and is premised inter alia on the grounds that: the applicant being partly dissatisfied with the trial Court’s decision has filed and served a notice of appeal and further applied for certified copies of the orders of the court and typed proceedings to enable it pursue an appeal on the same; that unless the judgment delivered on 25th September 2025 is stayed pending the hearing of the intended appeal, the applicant stands to suffer substantial loss and the intended appeal will be rendered nugatory if the orders sought are not granted; that the intended appeal is arguable and not frivolous; no prejudice will be suffered by the respondent if the application herein is granted. 3.The application was further supported by the affidavit deponed by one William K. Birech, a director of the applicant, in which he reiterated the grounds on the face of the application. 4.The respondent opposed the application and in a replying affidavit sworn on 25th January 2026, it was deponed: that the respondent has never been served with a notice of appeal or memorandum of appeal; that failure to serve the notice of appeal is fatal to the respondent’s case; that a stay of execution cannot exist in a vacuum and without an appeal, the court lacks jurisdiction to grant stay; that the applicant is in contempt of court, having failed to comply with the judgment and decree of the ELRC which required payment within 60 days; that in respect to the applicant’s claim of “Tax Burden”, that budgetary constraints of a state corporation do not override the constitutional right to fair labour practices and payment of earned dues; that the council is spending money to litigate and to appeal on a case they already lost on the facts while simultaneously allowing interest to accumulate. 5.The application was heard by way of written submissions with a brief highlighting of the submissions by learned state counsel Mr. Kioko for the applicant and the respondent, a practicing counsel, represented himself. 6.We have considered the application, the grounds in support thereof, the submissions, the authorities cited and the law. 7.Before we address the substantive matters raised in the application, we will consider the respondent’s contention that this Court has no jurisdiction to entertain the instant motion because neither the notice of appeal nor the memorandum of appeal was served upon him as required by Rules 77 and 79 of this Rules of this Court, matters already taken up in a striking out application pending before this Court. 8.Whilst the crucial nature of a notice of appeal in the appellate process cannot be overstated (see for example the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR)), there is contestation by the applicant regarding the matter of service. It is contended that a notice of appeal dated 25th September 2025 was filed and duly served. The application before us is for stay and we would rather let the rival positions to be resolved in the appropriate application, the striking out motion. For now, we are satisfied that this Court is properly seized of the instant application. 9.The jurisdiction of this Court under Rule 5(2)(b) of the Rules of this Court is discretionary guided by well settled principles, restated time without number. For instance, in Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR this Court observed:“The jurisdiction of the Court under Rule 5(2)(b) 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, to 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. These are the guiding principles, but these principles must be considered against facts and circumstances of each case…” 10.On the nugatory limb, this application is in relation to a money decree and the holding in Kenya Hotel Properties Limited v Willesden Properties Limited, Civil Application Nai. No. 322 of 2006 (UR 178/06) illuminates this path as follows: -“The decree is a money decree and normally the courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the court ascertains that the respondent is not a “man of straw” but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant. However, with time, it became necessary to put certain riders to that legal position as it became obvious that in certain cases, undue hardship would be caused to the applicants if a stay is refused purely on grounds that the decree is a money decree”. 11.A single bona fide arguable ground is sufficient to surmount the first limb. It is one that must not necessarily succeed but deserving further interrogation at the hearing of the main appeal (see Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR (Civil Application No. Nai. 31 of 2012). In addressing whether the intended appeal is arguable, the applicant has included a draft memorandum of appeal in the application. In our view, it is arguable inter alia whether the learned judge erred in law and in fact in awarding general damages equivalent to three months’ salary, notwithstanding the assertion that the respondent’s contract had lapsed by effluxion of time and without misconduct. Without saying more lest we embarrass the bench that will be seized of the main appeal, we are satisfied that the appeal is not frivolous, it is arguable. 12.On the nugatory aspect, the applicant contends that the decretal sum is colossal and there is a real risk of the sums being paid whilst the intended appeal is pending, which would place taxpayers’ money in jeopardy in the event the appeal was to succeed. The respondent, on the other hand, avers that he is an advocate of the High Court of Kenya and a practicing accountant with good professional standing and traceable assets and capable of repaying the decretal sum, and the appeal would therefore not be rendered nugatory. 13.As observed in Kenya Hotel Properties Limited (supra) the general rule regarding money decrees is that stay will not be granted unless the applicant demonstrates that the respondent lacks known assets or its financial position is doubtful and recovery proceedings will be impossible in the event of a successful appeal. On occasion, stay will be deserved where payment of the decretal sum will cripple the applicant’s operations or pose an existential threat to the applicant’s survival. 14.How does the application fare in the face of these tests? Nowhere in the application does the applicant state that the respondent is unable to repay the decretal sums in the event the appeal is of good fortune. In the absence of such challenge, the pendulum of proof did not swing to the respondent to demonstrate financial ability. Secondly on this aspect, it has not been proved, nay asserted, that recovery of any sums that may be paid out to the respondent will be impossible or difficult to recover. 15.Another contention made by the applicant is that the Kenyan taxpayer stands to lose colossal sums of money in settling the decretal sums. The applicant however does not say what those sums, which it describes as colossal, involve nor does it state that the sums are such that a payout would imperil its operations. And if we must add, we do not see how the decree which is three months’ salary, salary arrears for acting allowance for a period of about 19 months and gratuity for that period can be colossal. 16.Accordingly, the notice of motion dated 10th November, 2025, is without merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.F. TUIYOTT…………………………JUDGE OF APPEALL. M. NDOLO…………………………JUDGE OF APPEALA. I. HASSAN …………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.