https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1452

Allaka v Safaricom PLC (Cause E477 of 2024) [2026] KEELRC 1452 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1452 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E477 of 2024 CN Baari, J May 28, 2026 Between Saikumar Allaka Claimant and Safaricom PLC Respondent Ruling 1.Before Court is the Respondent/Applicant’s Motion application dated 11th November, 2025, brought pursuant to Article 48 and 50 (1) of the Constitution of Kenya, Section 3 (1) of the Employment and Labour Relations Court Act, as read with Section 12 (3) (viii) of the Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010. The Applicant seeks orders THAT: -i.Spent.ii.This Honourable Court be pleased to stay any further proceedings pending the hearing and determination of the appeal to the Court of Appeal.iii.The costs of this application and the suit be borne by the Claimant/Respondent. 2.The application is supported by grounds on the face of the Motion and the affidavit of one Daniel Ndaba, Counsel for the Applicant, sworn on 11th November, 2025. 3.The Applicant contends that on 23rd October 2025, the Court dismissed its Notice of Motion dated 25th November 2024, and being dissatisfied with the decision, it proceeded to file a Notice of Appeal and further requested certified copies of the proceedings and ruling. 4.The Applicant further states that the intended appeal is arguable and that, if the Court of Appeal overturns this Court’s decision on jurisdiction, the proceedings before this Court would be rendered a nullity, on the premise that a court acting without jurisdiction acts in vain. 5.The Applicant argues that, to avoid a situation where the proceedings may ultimately be rendered a nullity and to prevent wastage of judicial time and resources, it is in the interests of justice that the Claim be stayed pending the intended appeal before the Court of Appeal. 6.It is the Applicant’s position that failure to grant a stay would occasion substantial prejudice by denying it an opportunity to exhaust the appellate process, contrary to Article 48 of the Constitution on access to justice and Article 50(1) that guarantees the right to a fair hearing. 7.The Applicant further avers that the Claimant/Respondent will suffer no prejudice if the stay is granted. 8.The Applicant finally maintains that this Court has jurisdiction and discretion to grant an order for stay of proceedings pending appeal. 9.The Claimant/Respondent opposed the application vide a Replying affidavit sworn on 17th November, 2025. The Claimant contends that the present application is an abuse of the court process intended solely to delay the fair and expeditious hearing of the matter, which has been pending since the filing of the Statement of Claim on 24th June 2024. 10.The Claimant states that he has already complied with the Court’s directions by filing and serving the Statement of Claim, witness statements, and supporting documents within the prescribed timelines. He further avers that the Respondent/Applicant has failed to file a Statement of Defence or witness statements despite the lapse of 18 months, in disregard of the timelines set by the Court. 11.The Claimant states that the Respondent is relying on the intended appeal merely as a pretext to delay the proceedings, having only filed the Notice of Appeal after he had already filed his evidence and documents. The Claimant therefore argues that the application is a tactical move aimed at frustrating him, denying him access to justice, and subjecting him to financial and emotional hardship. 12.The Claimant further avers that Articles 48 and 50(1) of the Constitution guarantee the right to access justice and to a fair hearing, and that the Respondent’s attempt to delay the proceedings under the guise of jurisdictional objections and an intended appeal infringes upon his right to have the dispute heard and determined expeditiously. He argues that the Applicant’s conduct violates Articles 48, 50(1), and 159(2)(b) of the Constitution by delaying the expeditious determination of the dispute. 13.It is his position that despite the matter pending for over eighteen months, the Applicant has failed to file a defence or witness statements, thereby obstructing the progress of the suit and preventing the Court from identifying any triable issues. 14.The Claimant assert that the Court has power to proceed with the matter despite the Applicant’s non-compliance and that the delay risks exposing the suit to dismissal for want of prosecution. 15.The Claimant urges the Court to reject the stay application, require the Applicant to furnish Kshs.10,000,000 as security for costs, and notes that the Applicant has failed to pursue alternative dispute resolution mechanisms in good faith. 16.The Claimant/Respondent contends that the Application for stay is frivolous, made in bad faith, and intended only to delay the expeditious determination of the suit contrary to Article 159(2)(b) of the Constitution and the overriding objective of the Court. 17.He avers further that the Applicant has failed to demonstrate sufficient grounds or a likelihood of success on appeal to justify stay of proceedings, and contends that any delay will occasion prejudice, financial hardship, and emotional suffering, and therefore urges the Court to dismiss the application and allow the matter to proceed to hearing without further obstruction. 18.The Claimant avers that the application does not meet the legal threshold for the grant of stay orders and that the Applicant has not demonstrated any exceptional or arguable grounds to justify the discretionary remedy sought. 19.The Claimant further states that the intended appeal lacks merit and should not be used to frustrate or delay the judicial process. 20.Consequently, the Court is urged to dismiss the application with costs and allow the matter to proceed to hearing expeditiously. 21.Parties canvassed the application by way of written submissions, which have been duly considered. Analysis and Determination 22.The singular issue that arises for my determination is whether the Respondent/Applicant has satisfied the legal threshold for the grant of an order staying proceedings pending the hearing and determination of an appeal before the Court of Appeal. 22.The principles governing stay of proceedings are now well settled. Unlike a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, a stay of proceedings is a grave and exceptional remedy as it has the effect of halting a litigant’s right to prosecute his claim. Such an order thus ought to be granted sparingly and only in clear and deserving cases. 22.In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, Ringera J. observed that: -“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interests of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted.” 25.Similarly, in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), the Court held that a stay of proceedings is a drastic remedy which seriously interferes with a litigant’s right to conduct his litigation, and therefore ought not to be imposed unless the proceedings, beyond all reasonable doubt, ought not to continue. 25.The Court has also considered the principles set out in Re Global Tours & Travels Ltd Nairobi HCWC No. 43 of 2002, where it was emphasized that courts ought to weigh the pros and cons of granting the order, taking into account factors such as the need for expeditious disposal of cases, the arguability of the intended appeal, the scarcity of judicial time, and whether the application has been brought expeditiously. 25.The Applicant’s principal argument is that it has lodged a Notice of Appeal challenging this Court’s ruling dismissing its objection on jurisdiction and that if the Court of Appeal ultimately finds that this Court lacks jurisdiction, then all proceedings undertaken herein would be rendered a nullity. 25.This Court fully appreciates the centrality of jurisdiction and agrees that where a bona fide jurisdictional question is raised, the same deserves serious consideration. However, the mere filing of a Notice of Appeal or an assertion that jurisdiction is in issue does not automatically entitle a party to an order of stay of proceedings. The Applicant must still demonstrate sufficient cause and satisfy the Court that the interests of justice tilt in favour of halting the proceedings. 25.Further, the Court notes that the suit herein was filed on 24th June 2024 and has remained pending since, and the Claimant has already complied with the Court’s directions by filing his pleadings, witness statements, and documentary evidence, while the Respondent/Applicant has admittedly failed to file a Statement of Defence or witness statements since the suit was filed. 25.The Court finds merit in the Claimant’s contention that the Applicant has not satisfactorily explained the prolonged delay in taking steps to defend the claim. Litigation must come to an end, and parties are under a duty imposed by Article 159(2)(b) of the Constitution and Section 3 of the Employment and Labour Relations Court Act to assist the Court in achieving the expeditious disposal of disputes. 25.Further, while the Applicant asserts that the intended appeal is arguable, no draft memorandum of appeal has been annexed to enable the Court to assess the nature and weight of the intended challenge. 25.The Court is therefore left with only a bare assertion that the appeal is arguable. The Applicant herein has thus not sufficiently demonstrated such arguable issues beyond the generalized assertion on jurisdiction. 25.Further, whereas the Applicant invokes Articles 48 and 50(1) of the Constitution, the Claimant equally enjoys the constitutional right to access justice and to have his dispute heard and determined without unreasonable delay, which position calls on the Court to balance the competing rights of the parties. 25.It is also not lost on the court that should the appeal ultimately succeed on jurisdiction, the law provides appropriate remedies, while staying the matter at this stage would further delay a suit that has already remained pending for over eighteen months without substantive progress attributable largely to the Applicant’s inaction. 25.In light of the foregoing, this Court is not persuaded that continuation of the proceedings herein will occasion irreparable prejudice to the Applicant, who has not demonstrated exceptional circumstances warranting the drastic remedy of stay of proceedings. In my view, the application appears calculated to delay the hearing of the main claim rather than to advance the interests of justice. 25.In whole, the Court finds and holds that the Respondent/Applicant has failed to establish sufficient cause for the grant of an order staying proceedings pending appeal, and accordingly, the Notice of Motion dated 11th November, 2025 is hereby dismissed with costs in the cause. 25.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 28TH DAY OF MAY, 2026.C. N. BAARIJUDGEAppearance:Mr. Evans Ondieki present for the Claimant/RespondentMr. Kenneth Wilson present for the Respondent/ApplicantMs. Esther S -C/A