https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1489

Ng'eno & 11 others v County Government of Bomet & 14 others (Civil Application E099, E102 & E104 of 2026 (Consolidated)) [2026] KECA 1489 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KECA 1489 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E099, E102 & E104 of 2026 (Consolidated) JM Mativo, MB Kairaria & AI Hassan, JJA July 24, 2026 Between Eng Alexander Ng'eno Applicant and County Government of Bomet 1st Respondent Kenya County Government Workers Union 2nd Respondent County Public Service Board of Bomet 3rd Respondent Hillary Barchok 4th Respondent Simon Langat 5th Respondent Milca C Rono 6th Respondent Erick Rono 7th Respondent Emmy Chesang 8th Respondent David Tuei 9th Respondent Isaiah Byegon 10th Respondent Paul Kirui 11th Respondent Cecilia Ngetich 12th Respondent Millicent Soi 13th Respondent As consolidated with Civil Application E102 of 2026 Between Emmy Chesang 1st Applicant David Tuei 2nd Applicant Isaiah Byegon 3rd Applicant Paul Kirui 4th Applicant Cecilia Ngetich 5th Applicant Millicent Soi 6th Applicant Former and current members of Bomet County Public Service Baorad and County Government Workers Union 1st Respondent County Government of Bomet 2nd Respondent Eng Alexander Ngeno 3rd Respondent As consolidated with Civil Application E104 of 2026 Between County Government of Bomet 1st Applicant HE Prof Hillary Barchok, Governor Bomet County 2nd Applicant Simon Langat, County Secretary, Bomet County 3rd Applicant Chief Officer, Economic Planning Milca C Rono 4th Applicant Retired Human Resource Director, Erick Ronoh 5th Applicant and Kenya County Government Workers Union 1st Respondent Bomet County Public Service Board 2nd Respondent (Being applications for stay of execution pending the hearing and determination of an intended appeal against the ruling and orders of the Employment and Labour Relations Court at Kericho (Mwaure, J.) dated 6th February 2026, 18th June 2026 and 3rd July 2026 in ELRC No. E016 of 2022) Ruling 1.This ruling determines three consolidated applications, namely, Civil Application No. E099 of 2026 dated 3rd July 2026, Eng. Alexander Ng’eno vs Kenya County Government Workers Union, Civil Application No. E102 of 2026 dated 6th July 2026, Emmy Chesang and 5 Others vs County Government Workers Union and 2 Others and Civil Application No. E104 of 2026 dated 8th July 2026, County Government of Bomet & 4 others vs Kenya County Government Workers Union and Another. The common thread across the three applications is that the applicants are all aggrieved by the ruling/orders issued on 18th June 2026 sentencing the applicants to serve one month’s imprisonment. 2.By a ruling dated 6th February 2026, delivered in Kericho Employment and Labour Relations Court (ELRC) Cause Number E016 of 2022, Kenya County Government Workers Union vs County Government of Bomet and County Public Service Board of Bomet, Mwaure, J. allowed an application dated 4th August 2025 filed by Kenya County Government Workers Union and held that the County Government of Bomet and the County Public Service Board had violated court orders issued by Nderitu, J. on 28th October 2022, as well as orders issued by Warsame, Kiage and Ochieng JJ.A. on 14th May 2024 in Court of Appeal Civil Application Number E029 of 2024, County Public Service Board of Bomet vs Kenya County Government Workers Union and the Judgment issued in Civil Appeal Number 84 of 2024, County Public Service Board of Bomet vs Kenya County Government Workers Union. 3.In the ruling dated 18th June 2026, Mwaure, J. found the applicants in the three applications before us guilty of contempt of court for failing to comply with the judgment dated 29th February 2024 issued by Nderiru, J, convicted them and sentenced each of them to serve one month’s imprisonment. The learned judge also ordered the applicants to comply with the said judgment within 14 days. Lastly, the judge directed the OCS, Bomet Police Station to enforce the warrants of arrest and have the respondents arrested and put in prison. It is these two rulings/orders that are at the center of these consolidated applications. 4.However, the applicants in the three applications only filed notices of appeal against the ruling dated 18th June 2026 and not the ruling dated 6th February 2026. Notably, the applicants in E102 of 2026 in his notice of appeal refers to a ruling issued on 26th February 2026. There is no such a ruling, and, even if there was, the notice of appeal would be time barred. Therefore, we will proceed on the basis that the applicants are challenging the ruling dated 18th June 2026, which was triggered by the application dated 27th April 2026 filed by the Kenya County Government Workers Union, seeking to have the applicants cited for contempt. 5.The applicant in E099 of 2026 basically prays for stay and or suspension of execution of the ruling/orders issued on 18th June 2026 in ELRC E016 of 2022. The applicant also prays that the warrants of arrest dated 18th June 2026 be set aside. In summation, the applicant’s grounds in support of the application are that he has an arguable appeal including whether the finding on contempt and sentencing was premised on surmise and conjecture, whether the court ignored the fact that he was no longer in office, and, that in absent of stay, his appeal will be rendered nugatory. 6.The 1st respondent opposed the application vide a replying affidavit dated 13th July 2026 sworn by Roba S. Duba, its National Secretary General. However, the 45-paragraph affidavit is mainly dedicated to detailing the history of the dispute and addressing the applicant’s alleged blatant disregard of the court orders. Notably, the affidavit is very thin on addressing the prerequisites of an application under Rule 5 (2) (b) of the Court of Appeal Rules. The other respondents in this application did not file a reply, but during the hearing, they supported the application. 7.The applicants in E102 of 2026 pray for orders that pending hearing and determination of their intended appeal, this Court stays/suspends the execution of the impugned warrants and stay of the said ruling. The applicants also pray for the costs of the application to be provided for. In support of the application, the applicants maintain that they have filed a notice of appeal against the said decision, that they have an arguable appeal with a probability of success, and if stay is refused, they will suffer irreparable loss. Just like in the earlier discussed application, Mr. Roba S. Duba, swore a replying affidavit dated 13th July 2026. Again, the affidavit does not focus on the attributes of a 5 (2) (b) application. The County Government of Bomet did not file a reply, but during the hearing, its counsel supported the application. 8.The applicants in E104 of 2026 also seek to stay the same ruling/order and stay of proceedings in ELRC Cause No. E016 of 2022 pending the hearing and determination of their intended appeal. They also pray for costs of the application to be provided for. It is their case that they have substantially paid the decretal sum and unless stay is granted, their application will be rendered nugatory. The Kenya County Government Workers Union filed a replying affidavit which is identical to the other two affidavits mentioned above basically skirting the critical elements of an application under Rule 5 (2) (b). The 2nd respondent did not file a reply to the application, but during the hearing, its counsel supported the application. 9.During the virtual hearing of the application on 15th July 2026, learned counsel Mr. Mogire appeared for the applicant in No. E099 of 2026, the 3rd respondent in E0102 of 2026 and also the 3rd respondent in E104 of 2026. Learned counsel Mr. Oketch appeared for the Kenya County Government Workers Union, who is a respondent in the three applications. Learned counsel Mr. Matwere and Echesa appeared for the 2nd, 5th, 6th, 7th and 12th respondents in E099 of 2026. Learned counsel Ms Chepngeno appeared for the 3rd, 8th, 9th 10th, 11th, 12th and 13th respondents, and for the applicants in E102 of 2026. Mr. Echesa appeared for the 4th respondent. 10.Mr. Mogire on behalf of the applicant in No. E099 of 2026 maintained that the applicant has demonstrated that his intended appeal is arguable and in the event the applicant is arrested and imprisoned, his appeal will be rendered nugatory. 11.Learned counsel, Ms Chepngeno for the applicants in Civil Application No. E102 of 2026 submitted that the question whether former board members of the Public Service Board can be held liable for contempt is an arguable ground, and whether willful and deliberate disobedience of the court orders was established is also an arguable ground. Similarly, the legality or otherwise of the sentence is an arguable ground. Regarding the nugatory aspect, counsel submitted that liberty, once lost cannot be restored retrospectively. 12.In support of Civil Application No E104 of 2026, learned counsel Mr. Matwere submitted that the grounds urged in the application and the draft memorandum of appeal are not frivolous and in the event the applicants are committed to jail and serve the one month imprisonment, their appeal will be rendered nugatory. 13.Learned counsel Ms Chepngeno supported Civil Application Numbers E099 of 2026 and E104 of 2026. Mr. Matwere also supported Civil Application Number E099 of 2026 and E102 of 2026, Mr. Mogire, supported Civil Application Number E102 of 2026, Mr. Echesa supported Civil Application Number E099 of 2026. 14.Learned counsel Mr. Oketch representing Kenya County Government Workers Union a respondent in the three applications filed substantially identical submissions in the three applications. Counsel deployed more ink and paper addressing the alleged history of disobedience of court orders in this litigation which culminated in the committal for contempt and said very little on the twin principles under Rule 5 (2) (b), namely, whether the appeal or intended appeal is arguable and if so, whether absent of stay, the application will be rendered nugatory. As for the nugatory aspect, counsel submitted that the applicant has not placed before this Court any material to justify exercise of its discretion in its favour, and if the appeal succeeds, whether it will not be rendered nugatory. Counsel urged this Court to dismiss the applications. To buttress his submissions, Mr. Oketch relied on this Court’s decisions in Meta Platforms, Inc & Another vs. Motaung & Another; KNHREC & 9 Others [2023] KECA 996 and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme vs. Millimo, Muthomi & Co. Advocates & 2 Others [2022] KECA 491, JMK VS PNK 2029 KECA 340 KLR to urge that even if an appeal is arguable, the Court can refuse to stay the proceedings if the applicant does not demonstrate that the appeal will be rendered nugatory. 15.The principles upon which an application under Rule 5 (2) (b) may be granted are settled in many decisions of this Court. (See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR). In summary, this Court’s jurisdiction under Rule 5 (2) (b) is discretionary. Even though the discretion is wide, it must be exercised judicially depending on the circumstances of a particular case. In exercising the discretion, the Court must be satisfied that two elements are established. One, an applicant must demonstrate he has an arguable appeal. Two, he must demonstrate that unless the stay is granted, the appeal will be rendered nugatory. 16.Regarding the first prerequisite, that is whether or not the appeal is arguable, we have to consider whether there is at least a single bona fide arguable ground that has been raised by the applicants in order to warrant ventilation before this Court. We must mention that an arguable ground does not mean a ground that must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. We are alive to the fact that in considering an application brought under Rule 5 (2) (b) this Court is constrained not to make definitive or final findings of either fact or law at this stage because doing so may embarrass the ultimate hearing of the main appeal. (See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] e KLR). 17.During the hearing of this application, answering a question from the Court, the 1st respondent’s counsel confirmed that the decree in question is against a state entity and he never complied with the mandatory provisions of Section 21 (1) of the Government Proceedings Act. This provision dictates how Court decrees and money orders are satisfied against the State and County Governments. The key requirements of this section include issuance of a certificate of order against the Government/a certificate of costs from the Court that issued the decree. The certificate(s) must be served upon the relevant accounting officer or the Attorney General, and once served, it creates a statutory duty on the designated accounting officer to pay the specified sums. The question whether there is a consequence (if any) for failing to comply with this provision is an arguable ground. Whether or not before civil enforcement remedies can be deployed against an individual, there must be an order capable of being executed is an arguable ground. Whether or not committal to civil jail is strictly built upon the non-performance of positive obligations outlined within an enforceable decree is an arguable ground. 18.Similarly, the question whether persons who have ceased to hold public offices can be committed for contempt in the circumstances of this case is an arguable ground. Lastly, the legality or otherwise of the sentence of one-month imprisonment will be an issue for determination during the hearing of the appeal. It is an established position that an applicant need not establish a multiplicity of grounds of appeal. Even a single bona fide ground will suffice. We have considered the grounds urged in the three applications. Without stating more, we are satisfied that the applicants have satisfied this first prerequisite. 19.As to whether the applicants have satisfied the nugatory aspect, this Court has in numerous decisions established a definitive and unyielding line of jurisprudence clarifying that the threat of arrest, imprisonment, or committal to civil jail satisfies the nugatory aspect of the Rule 5 (2) (b) test. While the Court strictly holds that money decrees are rarely rendered nugatory because funds can be repaid, personal human liberty is legally recognized as a unique, irreplaceable commodity. If an applicant is forced to serve a civil jail term while their appeal is pending, a subsequent victory on appeal cannot reverse the time already spent in prison. This Court in Ndumbi & Ano. vs. Muturi (Civil Application E031 of 2026) KECA 811 explicitly isolated the loss of physical liberty from purely commercial or proprietary losses. It stated:“There are numerous decisions by this Court consistently holding that where a person faces a jail term for contempt of court, their intended appeal would be rendered nugatory (meaningless) because the loss of liberty is irreversible and cannot be undone by a later successful appeal." 20.This Court in Solomon & 3 Others vs. Mwangaza & Ano. (Civil Application 320 of 2026) KECA 320, while determining an application seeking to stay execution of warrants of arrest and committal, accepted the applicant’s argument that being forced to undergo imprisonment completely destroys the utility of an appeal. The Court affirmed that forcing an applicant to serve a 6-month sentence before the appellate court evaluates the legality of that sentence renders the entire appellate process "hopeless" and hollow. 21.We may also usefully refer to this Court’s decision in Saroya vs. Director of Public Prosecutions & 3 Others (Civil Application E961 of 2026) KECA 961 in which while dealing with an overlapping context of a stay of proceedings that carried custodial risk, the Court observed that the risk of conviction and the consequent loss of personal liberty and reputational damage constitutes permanent, un-compensatable harm that fully satisfies the nugatory threshold. 22.The other consideration to bear in mind is what would happen if the stay is granted. The appeal will he heard and in the event the applicants’ appeals fail, the decree holder will be paid. In fact, no argument was presented before us to suggest the applicants will be unable to pay. On the contrary, there is undisputed evidence that the County Government of Bomet has paid substantial payments to the decree holder in satisfaction of the decree. 23.In conclusion, we find that the applicants have satisfied the twin principles to warrant the exercise of our discretion in their favor. Accordingly, we allow these consolidated applications and order that the ruling/order issued on 18th June 2026 in Kericho ELRC No. E016 of 2022 be and is hereby stayed pending the hearing and determination of the applicants’ appeals against the said decision. Costs shall abide the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 24TH DAY OF JULY, 2026.J. MATIVO................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.