https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2298

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC MISC. APPLICATION NO. E052 OF 2026 ACCESS SECURITY SERVICES LIMITED ……...APPLICANT **-VERSUS-** DENNIS ONKUNDI ONGONDI …………………... RESPONDENT *(Being an application for leave to appeal out of time and for stay of execution of the Judgment and Decree of the Chief Magistrate's Court at Mombasa delivered on 23rd January, 2026 in MCELRC/E611/2024)* **RULING** **I. THE APPLICATION** 1. By a Notice of Motion dated 12th May, 2026, brought principally under section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, the Applicant, Access Security Services Limited, seeks the following orders: a) That this application be certified urgent and be heard ex parte in the first instance, service thereof being dispensed with in the first instance. b) That, pending the hearing and determination of this application, the Court be pleased to grant an order of stay of execution of the Judgment and Decree issued on 23rd January, 2026 in Mombasa Magistrate's Court in MCELRC/E611/2024. c) That, pending the hearing and determination of the intended appeal, the Court be pleased to grant an order of stay of execution of the Judgment and Decree, together with all consequential orders arising therefrom. d) That the Court be pleased to stay, suspend, and/or set aside the warrants of attachment dated 4th May, 2026 issued to Beyond Auctioneers, and all execution proceedings arising therefrom. e) That the Court be pleased to stay, suspend, and/or lift the proclamation of the Applicant's/Intended Appellant's properties effected on 7th May, 2026 by Beyond Auctioneers, and restrain any further steps towards attachment, repossession, or sale by public auction pending the hearing and determination of the appeal. f) That the Draft Memorandum of Appeal annexed to the application be admitted and deemed duly filed upon such terms as the Court may deem just, in the interests of justice and to facilitate the hearing of the intended appeal on its merits. g) That the Court be pleased to grant such further orders as may be necessary to preserve the subject matter of the appeal and prevent the intended appeal from being rendered nugatory. h) That costs of this application be provided for. **II. THE APPLICANT'S CASE** 2. The Applicant was dissatisfied with the judgment delivered on 23rd January, 2026 in MCELRC/E611/2024 and promptly instructed its advocates to appeal. A Draft Memorandum of Appeal was prepared on 2nd February, 2026, but the appeal was not perfected within time because the advocate handling the matter was seriously injured in a road traffic accident on 3rd February, 2026 and was temporarily incapacitated. 3. The advocate resumed duty on 11th May, 2026 and immediately took steps to regularise the appeal. Meanwhile, the Respondent had commenced execution, obtained warrants of attachment, and instructed Beyond Auctioneers, who issued a proclamation notice over the Applicant's movable assets. 4. The Applicant contends that execution is imminent and may disrupt its business, cause substantial loss, and render the intended appeal nugatory. It maintains that the delay was neither deliberate nor of its own making, that the intended appeal is arguable, and that the Respondent will suffer no undue prejudice if the orders sought are granted. **III. THE RESPONDENT'S CASE** 5. The Respondent, Dennis Onkundi Ongondi, opposed the application both by Grounds of Opposition dated 13th May, 2026 and by a Replying Affidavit sworn by himself. As the two traverse the same ground, the substance of his opposition, rather than each of the eighteen grounds pleaded and each averment sworn, is conveniently taken together below. 6. It is not in dispute that judgment in MCELRC Cause No. E611 of 2024 was delivered in the Respondent's favour on 23rd January, 2026, and that the Applicant neither filed an appeal nor sought an extension of time within the period prescribed by law. The Respondent's case is that execution was thereafter lawfully commenced, culminating in the warrants of attachment and the proclamation of the Applicant's properties, and that the present application surfaced only after that machinery had already been set in motion — a sequence he characterises as an afterthought and a reactionary measure calculated to obstruct his lawful enjoyment of the fruits of the judgment, rather than a genuine and timely assertion of appellate rights. 7. The Respondent squarely disputes the explanation offered for the delay. He points out that, notwithstanding the assertion that Counsel was incapacitated by a road traffic accident on 3rd February, 2026, no medical report, treatment notes, discharge summary, sick-off sheet or other credible medical evidence has been placed before the Court; photographs of a damaged vehicle, without more, do not in his submission establish incapacity of a severity sufficient to explain total inaction for over three months. He further relies on the trial court's record of 9th April, 2026, on which date Counsel holding brief for the Applicant appeared during the assessment of the Respondent's Party and Party Costs and sought time to respond to the Statement of Costs — participation which, he contends, is irreconcilable with a claim of continuing incapacity and confirms that the Applicant and its advocates remained seized of, and engaged in, the post-judgment proceedings throughout the period of the alleged incapacity. On this footing, he submits that the explanation is false, misleading and unsupported, that mistake or negligence of counsel is not automatically excusable, and that a litigant bears an independent duty of diligence which the Applicant has not discharged. 8. On the merits of the reliefs sought, the Respondent contends that the Applicant has failed to demonstrate any arguable appeal, has not annexed a Memorandum of Appeal disclosing serious triable issues, and has in any event failed to satisfy the cumulative requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules: no substantial loss beyond the ordinary incidents of lawful execution has been shown, and no security for due performance of the decree has been offered or furnished. He avers that he stands to suffer grave prejudice through continued delay in enjoying a judgment obtained after a full hearing, that the balance of convenience favours execution proceeding, and that the Applicant, having approached the Court with unclean hands, is undeserving of the equitable and discretionary relief sought. He prays that the application be dismissed with costs. **IV. THE APPLICANT'S SUBMISSIONS** ***(a) Enlargement of time*** 9. The Applicant submits that section 79G of the Civil Procedure Act permits an appeal to be admitted out of time where good and sufficient cause is shown, and relies on **Salat v Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR)** for the proposition that the length of the delay, the explanation given, and the prejudice to the parties all bear on the exercise of the Court's discretion. 10. It maintains that it acted promptly upon judgment, issuing instructions and preparing a Draft Memorandum of Appeal on 2nd February, 2026, before Counsel's road traffic accident of 3rd February, 2026 intervened, and that the ensuing delay is attributable to Counsel's medical incapacity rather than to indolence or want of interest on its part. 11. It submits, relying on **SM Chege & Co Advocates v Cannon General Insurance Co Ltd [2026] KEHC 7448 (KLR)**, that it ought not to be shut out of its right of appeal by reason of the incapacity, inadvertence or default of its Advocate. 12. Relying further on **Raphael Musila Mutiso & 3 others v Joseph Ndava Nthuka & Another [2019]KECA 463(KLR),** the Applicant submits that the delay occurred entirely during Counsel's incapacity, that the application was filed within two days of Counsel resuming duty, that the explanation is supported by documentary and photographic evidence, and that any prejudice to the Respondent is capable of being met by an award of costs and the provision of security. ***(b) Arguability of the intended appeal*** 13. The Applicant submits that it need only demonstrate a single bona fide issue deserving consideration, citing **Kamau v Gatonye & Another (Civil Application E520 of 2024) [2025] KECA 789 (KLR)**. 14. It identifies its proposed grounds of appeal as, among others, the trial court's alleged failure to consider evidence of voluntary desertion, its finding of constructive dismissal, its treatment of the consolidated salary term in awarding underpayment and house allowance, its application of section 47(5) of the Employment Act, and its determination of the matter despite a pending objection to territorial jurisdiction — grounds it submits raise substantial questions of fact and law meriting appellate consideration. ***(c) Stay of execution: substantial loss and delay*** 15. The Applicant submits that it has satisfied the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules by demonstrating substantial loss, bringing the application without unreasonable delay, and offering security for the due performance of the decree. 16. It contends that substantial loss is established because the Proclamation Notice targets its sole motor vehicle, office desks, chairs and computers — assets it describes as essential tools of trade for its security business, whose sale would disrupt its operations and threaten the continued existence of the business — relying on **Proto Energy Limited v Muli [2026] KEHC1378 (KLR)** 17. It further submits, relying on **Mainkam Limited & Another v Multichoice Kenya Limited [2020] KECA 696 (KLR)**, that the intended appeal would be rendered nugatory should the proclaimed assets be sold to third parties, such a sale being difficult to reverse and leaving the Applicant to an uncertain claim for reimbursement or damages. 18. On delay, the Applicant submits, relying on **Jaber Mohsen Ali & Another v Priscillah Boit & Another, [2014] eKLR**, as cited in **Barasa v Nambale (Civil Appeal E135 of 2024) [2025] KEHC 4986 (KLR)**, that reasonableness of delay is to be assessed in light of the circumstances of the case rather than by merely counting days from judgment; Counsel having been incapacitated between 3rd February and 11th May, 2026, and the application having been filed on 13th May, 2026, promptly thereafter. ***(d) Security*** 19. The Applicant confirms its readiness to comply with any conditions the Court may impose, including depositing the whole or part of the decretal sum in a joint interest-earning account or furnishing a bank guarantee. ***(e) Response to the Respondent's opposition*** 20. The Applicant submits that Counsel's appearance while holding brief at the taxation mention of 9th April, 2026 does not contradict its explanation of incapacity, that appearance having been limited to seeking a procedural adjournment, whereas preparation and prosecution of the appeal required the Advocate who had conduct of the matter and who remained incapacitated. 21. It maintains that the photographs of the accident, read together with the sworn averments in its Supporting Affidavit, adequately support its explanation, and that it remains willing to furnish further medical documentation should the Court require additional corroboration. **V. THE RESPONDENT'S SUBMISSIONS** ***(a) Enlargement of time*** 22. The Respondent submits that extension of time is a discretionary and equitable remedy, not available as of right, the burden resting on the Applicant to give a satisfactory explanation for the delay; he relies on **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR** and **Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231**. 23. He contends that the delay was inordinate and unexplained: judgment having been delivered on 23rd January, 2026, the Applicant neither appealed nor sought extension of time within the prescribed period, and moved the Court only after warrants of attachment had issued — conduct he submits shows not an inability to act caused by circumstances beyond the Applicant's control, but simple failure to act until execution became imminent. 24. He further submits that no medical report, treatment notes, discharge summary or sick-off note has been produced to substantiate the claimed incapacity, photographs of a damaged vehicle being insufficient proof that Counsel was thereby rendered unable to file the Memorandum of Appeal, and that this explanation is contradicted by the court record of 9th April, 2026, on which date Counsel holding brief for the Applicant appeared and sought time to respond to the Statement of Costs, demonstrating continued awareness of, and participation in, the post-judgment proceedings. 25. Relying on **Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] eKLR**, he submits that litigation must come to an end and that a successful litigant is entitled to enjoy the fruits of judgment; and, relying on **Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR** and **Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR**, that a litigant cannot simply blame its advocate for procedural default without more, litigants bearing an independent duty to follow up their own matters. ***(b) Stay of execution*** 26. The Respondent submits that the Applicant has failed to satisfy the cumulative requirements of Order 42 Rule 6(2) of the Civil Procedure Rules — proof of substantial loss, absence of unreasonable delay in applying, and provision of security for due performance of the decree. 27. He contends, relying on **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR**, that the mere commencement of execution does not of itself amount to substantial loss, execution being a lawful process, and that the Applicant has demonstrated no exceptional circumstance of irreparable prejudice. 28. Relying on **National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another [2006] eKLR,** he submits further that the Applicant has neither alleged nor shown that the Respondent would be unable to refund the decretal sum should the appeal succeed, so that the appeal cannot be said to be at risk of being rendered nugatory; and, relying on **Antoine Ndiaye v African Virtual University [2015] eKLR** and **Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR**, that the Applicant has in any event furnished no security whatsoever. ***(c) Balance of convenience*** 29. Relying on **Butt v Rent Restriction Tribunal [1982] KLR 417**, the Respondent submits that the balance of convenience favours allowing execution to proceed, judgment having been entered after a full hearing, the decree remaining valid, costs having been assessed, and execution having been commenced only upon the Applicant's default; to stay execution now, he submits, would unfairly deny a successful litigant the fruits of judgment. **VI. ANALYSIS AND DETERMINATION** 30. Three issues fall for determination: first, whether the Applicant has shown sufficient cause for enlargement of time to lodge its appeal out of time; second, whether the conditions for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules have been satisfied; and third, who should bear the costs of this application. ***(a) Enlargement of time*** 31. Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to be filed within thirty days, but permits an appeal to be admitted out of time where the applicant demonstrates good and sufficient cause. In **Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR)**, the Court stated: *“Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”* 32. The relevant considerations, distilled from that authority, are the length of the delay, the reason for it, the prejudice likely to be suffered by the opposite party, and whether the intended appeal is arguable. 33. Judgment was delivered on 23rd January, 2026. The Applicant instructed its advocates to appeal, and a Draft Memorandum of Appeal was prepared on 2nd February, 2026, before Counsel handling the matter was involved in a road traffic accident on 3rd February, 2026. The present application was filed on 13th May, 2026, shortly after Counsel resumed duty on 11th May, 2026. The Respondent disputes the incapacity, relying principally on Counsel's appearance during the assessment of costs on 9th April, 2026; but that appearance, on the record before the Court, was by Counsel holding brief, and was confined to seeking time to respond to the Bill of Costs — a limited, procedural intervention that does not, without more, establish that the Advocate with conduct of the intended appeal had by then recovered sufficiently to prepare and prosecute it. 34. In **Bartik & 3 others v Aduda & 2 others [2025] KEHC 12025 (KLR)**, the Court, relying on **Philip Chemwolo & Another v Augustine Kubende [1982–88] KAR 103**, stated: ***“Blunders will continue to be made from time to time, and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”*** 35. Applying that approach, and having regard to the length of the delay, the explanation tendered, and the absence of any suggestion of fraud or deliberate default, I am satisfied that the delay has been sufficiently explained. 36. As to arguability, the intended appeal challenges, among other matters, the trial court's finding of constructive dismissal, its treatment of the consolidated salary term, its application of section 47(5) of the Employment Act, and its determination of the matter despite an objection to territorial jurisdiction. These raise bona fide issues deserving consideration on appeal. In **Kamau v Gatonye & Another (Civil Application E520 of 2024) [2025] KECA 789 (KLR)**, citing Stanley **Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR**, the Court stated: ***“A single bona fide issue satisfies the threshold for finding an appeal arguable.”*** 37. The Applicant has accordingly established sufficient cause for enlargement of time within which to lodge its appeal. ***(b) Stay of execution*** 38. Order 42 Rule 6(2) of the Civil Procedure Rules requires an applicant for stay of execution to demonstrate that substantial loss may result unless the order is made, that the application has been made without unreasonable delay, and that security for the due performance of the decree has been given or offered. 39. The proclaimed assets comprise the Applicant's sole motor vehicle, office desks, chairs and computers, said to be deployed in the operation of its security business. Their attachment and sale would accordingly threaten not merely the satisfaction of a monetary sum but the continued operation of the business itself. In **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR**, the Court observed: ***“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.”*** 40. That principle is not, however, offended here: The Applicant does not rest its case on the mere fact that execution has commenced, but on the specific character of the assets proclaimed — assets integral to the conduct of its business — and on the practical difficulty of reversing their sale to third parties should the appeal succeed. On that footing, and consistently with the reasoning in **Proto Energy Limited v Muli (Civil Appeal E225 of 2025)** and **Mainkam Limited & Another v Multichoice Kenya Limited [2020] KECA 696 (KLR)**, I find that substantial loss, and the real risk of the appeal being rendered nugatory, have been demonstrated. 41. The application was filed on 13th May, 2026, two days after Counsel resumed duty on 11th May, 2026. Given the circumstances explaining the antecedent delay, already addressed above, I find that the application was brought without unreasonable delay. 42. On security, the Applicant has expressed willingness to deposit the whole or part of the decretal sum in a joint interest-earning account, or to furnish a bank guarantee. An offer of security, however genuinely made, must be given practical effect if it is to satisfy Order 42 Rule 6(2); I address the quantum and mode of security in the orders below. 43. I find, in the result, that the three conditions of Order 42 Rule 6(2) — substantial loss, absence of unreasonable delay, and security for due performance of the decree — have each been satisfied, the last subject to the concrete terms fixed in this ruling. ***(c) Auctioneers' charges and costs*** 44. The proclamation and attachment, though now to be stayed, were not shown to have been unlawfully commenced; they proceeded as a lawful consequence of the Applicant's own delay in perfecting its appeal. It is accordingly just that the charges already incurred by Beyond Auctioneers in that process be borne by the Applicant, whose default occasioned them, such charges to be agreed between the parties or, failing agreement, taxed by the Deputy Registrar. 45. As to the costs of this application, the Applicant has succeeded, but only because of a delay of its own occasioning, and the ultimate merits of the parties' dispute remain to be settled on appeal. The just order is that the costs of this application abide the outcome of the intended appeal. **VII. CONCLUSION** 46. For the foregoing reasons, the application dated 12th May, 2026 succeeds. It is hereby ordered that: a) The application is allowed. b) Leave is granted to the Applicant to file and serve its Memorandum of Appeal against the Judgment and Decree delivered on 23rd January, 2026 in Mombasa Magistrate's Court in MCELRC/E611/2024 out of time, within fourteen (14) days from the date of this ruling. c) There shall be a stay of execution of the Judgment and Decree of the trial court delivered on 23rd January, 2026, together with all consequential orders, including the warrants of attachment dated 4th May, 2026 and the proclamation of 7th May, 2026, pending the hearing and determination of the intended appeal, PROVIDED THAT this order of stay is conditional upon, and shall take effect only upon, the Applicant depositing in court, within thirty (30) days of the date of this ruling, a sum equivalent to seventy-five per centum (75%) of the decretal sum as security for the due performance of the decree, failing which this order shall automatically lapse and the Respondent shall be at liberty to proceed with execution without further reference to the Court. d) The charges of Beyond Auctioneers already incurred in the execution process shall be borne by the Applicant, the same to be agreed upon between the parties or, failing agreement, to be taxed by the Deputy Registrar of this Court. e) The costs of this application shall abide the outcome of the intended appeal. It is so ordered. Delivered, dated and signed at Mombasa this 30th day of July 2026. OCHARO KEBIRA JUDGE