https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1568

Bluestone Limited v Kundu (Appeal E021 of 2026) [2026] KEELRC 1568 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1568 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E021 of 2026 JW Keli, J June 5, 2026 Between Bluestone Limited Appellant and Bashiri Keya Kundu Respondent (Being an Appeal from the judgement and Decree of MCELRC/E085/2024 by Hon. Principal Magistrate Hon. E. Suter delivered on the 11th day of September 2025) Ruling 1.The Applicant filed an application by way of Notice of Motion dated 20th January 2026 brought under Sections 1A,1B,3A and 63(e) of the Civil Procedure Act, Cap 21, laws of Kenya and Order 42 Rule 6 of the Civil Procedure Rules,2010,the Employment & Labour Relations Court Rules & all enabling provisions of the law for orders;A.SpentB.That the time for filing this Application be abridged and/or enlarged as necessary to cure any apparent irregularity.C.That the Appellant be allowed to file the memorandum of appeal out of time and thus the filed memorandum of appeal be deemed to be filed in time and regularly.D.That pending the hearing and determination of this Application interpartes this Honourable Court issue a stay of execution of the judgement and decree in Mavoko MCELRC/E085/2024 by Hon. Magistrate Hon. E. Suter delivered on the 11th day of September 2025.E.That pending the hearing and determination of this Appeal this Honourable Court issues a stay of execution of the judgement and decree in Mavoko MCELRC/E085/2024 by Hon. Magistrate Hon.E. Suter delivered on the 11th day of September 2025.F.That the cost of this Application be provided for. Grounds of the application 2.That the Appellant/Applicant has a prima facie arguable appeal with high chances of success, as the learned Magistrate/Adjudicator erred in law by awarding the Respondent house allowance for a period exceeding 12 months immediately preceeding the filing of the claim dated 11th March 2024 whereas by virtue of Section 90 (2) of the Employment Act, 2007, in the case of a continuing injury or damage, recovery is limited after cessation of the injury or damage. 3.That the Appellant/Applicant has a prima facie arguable appeal with high chances of success, as the learned Magistrate/Adjudicator erred in law by awarding the Respondent unpaid leave for a period exceeding 12 months immediately preceeding the filing of the claim dated 11th March 2024 whereas by virtue of Section 90 (2) of the Employment Act, 2007, in the case of a continuing injury or damage, recovery is limited after cessation of the injury or damage. 4.That the learned Magistrate erred in law and fact by reaching a determination that the Claimant was employed by the Respondent in the year 2013 while there is no evidence establishing that the Claimant was employed in the year 2013 and hence arriving at a wrong conclusion. 5.That the Respondent has commenced execution proceedings against the Appellant/Applicant and has taken steps to garnishee the Appellant/Applicant’s bank account held at Victoria Commercial Bank Limited, thereby occasioning imminent financial prejudice unless this Honourable Court intervenes. 6.That unless this Honourable Court issues a stay of execution of the judgement and decree in MCELRC/E085/2024 the Respondent shall proceed with execution of the said judgement hence rendering the Appeal nugatory and an academic exercise. 7.That the balance of convenience favours the issuance of stay of execution of the judgement and decree in MCELRC/E085/2024. 8.The applicant filed an affidavit in support of the application, sworn by Sarika Patel, sworn on the 20th January 2026, where he annexed the impugned Judgment of the lower court, a copy of the memorandum of appeal, a request for proceedings and a copy of the garnishee application. Response 9.The respondent filed a replying affidavit, which he swore on the 11th February 2026, and opposed the application as follows- That the present application was filed on the 76th of January 7026, over one (5) months after the delivery of judgment. That the applicant has not demonstrated what loss they stand to incur if they pay the decreed amount. That the applicants have not demonstrated his penury to the extent that he cannot compensate the applicant the total decretal sum if the appeal is successful. That this stay would amount to ensuring he would not to reap the fruits of his judgment. 10.That his advocates on record advised him that - The onus is upon the applicant to demonstrate a proper basis {or a stay which will be fair to all parties. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus. c. The court has a discretion involving the weighing of considerations such as the balance of convenience and the competing rights of the parties. The court will not generally speculate upon the appellant’s prospect of success but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time. As a condition of a stay the court may require payment of the whole or part of the judgment sum or the provision of security. Decision 11.The application was canvased by way of written submissions. Both parties complied.Issues for determinationa.Whether the application for extension of time to file an appeal was meritedb.Whether the application for the stay of execution is merited. Whether the application for extension of time to file appeal was merited 12.The applicant submitted as follows-The power to extend time is discretionary and intended to advance substantive justice. In the case of Aboge v Aboge & 2 others (Civil Application E057 of 2025) [2025] KECA 1285 (KLR) the court quoted with approval the sentiments of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, where the Supreme Court stated: “Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.” The Court set out guiding principles including:  Length of delay  Reason for delay  Prejudice to the respondent  Whether the application has been brought without undue delay  Public interest considerations In the above cited case, the court further emphasized that: The Supreme Court of Kenya also pronounced as follows in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR: “the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” 13.Applying those principles: 1. Length of Delay – Approximately five months. 2. Reason for Delay – Failure of previous counsel to file Appeal despite instructions. 3. Prejudice – None, as decretal sum is secured in Court. Arguability – Appeal raises pure questions of law on statutory limitation and computation of employment benefits. Further, the Appeal is not frivolous. It challenges:  Award of house allowance beyond statutory limitation;  Award of leave beyond statutory limitation;  Erroneous finding of employment period without evidentiary basis. These are weighty legal issues deserving appellate interrogation. The delay is explained; the Appeal is arguable; no prejudice will be suffered by the Respondent; and security is already deposited. Conversely, we urge this honorable court to find that this is a proper case for exercise of discretion in favour of extension. 14.Conversely, the respondent submitted as follows- Whether the Appellant has satisfied the requirement for extension of time The applicant seeks extension of time to file memorandum of appeal and record of appeal against the decision of the lower court. The applicant state that the delay was largely cause by the delay by the previous Advocate who did not file the Appeal nor notify the Respondent of the non-filling of the Appeal. Section 79(g) of the Civil Procedure Act provides that "Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period are time which the lower co may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of, time if the appellant satisfy the court that he had good and sufficient cause for not filling the appeal in time. It is clear therefore that the decision whether or not to grant leave to appeal out of time or to admit an appeal is an exercise of discretion and just like any other exercise of discretion must be exercised on the basis of evidence and sound legal principles. In the case of First American Bank of Kenya Ltd Vs. Gulab P Shah & 2 others Nairobi Milimani HCCC No. 2255 of 2000 [2002] I EA 65 the court set out the factors to be considered in deciding whether to grant such application and these are (1) the length of the delay, (2) the explanation if any for the delay (3) the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is frivolous one which would only result in delay of the course of justice (4) whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer of a favourable exercise of discretion in favour of the applicant. In the present case the applicant filed memorandum of appeal on 9th December 2025 that is 90 days after delivery of Judgement and content that the delay to file notice of appeal and record of appeal was caused by the Advocate they instructed to file the appeal, however they have not provided any supporting evidence in terms of correspondence to support the averment. At all times the respondent was aware of the entry of Judgement and only came to court at the eleventh hour when the claimant served them with garnishee application. We urge the court to apply the principle laid down in the case of Muya Vs. Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (petition 4 of 2020) [2022] KESC 16 (KLR) where the court stated that in determining whether there is inordinate delay the focus should not be the length of delay per se, but also on the justification and reasons, which in turn must be rational and plausible. The reasons advanced by the applicant is not justifiable to warrant leave to file appeal out of time. Decision on issue no. 1 15.The application was canvassed by way of written submissions. 16.Rule 12 of the Employment and Labour Relations Court (Procedure) Rules 2024provides time for filing an appeal to the court as follows:-‘12. (1) Where a written law provides for an appeal to the Court, an appellant shall file amemorandum of appeal with the Court within the time specified under that written law.(2)Where an appeal is from a magistrate’s court or where no period of appeal is specifiedin the written law referred to in sub-rule (1), the appeal shall be filed within thirty days fromthe date the decision is delivered.’’ 17.The judgment of the Trial Magistrate Court was delivered on the 11th September 2025. The application was filed on 22nd January 2026. According to Rule 12(2) of the Court(supra), the appeal ought to have been filed within 30 days. The appeal ought to have been filed in court on or before the 11th October 2025 taking int account 10th October 2025 was a public holiday. 18.The applicant states the delay was occasioned by the failure of their previous advocate to lodge the appeal as per their instructions. The respondent contended there was no correspondence before the court to prove the excuse for the delay. Rule 18 of Employment and Labour Relations Court (Procedure) Rules 2024 provides for extension of time to file appeal as follows:-‘ 18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.’’ 19.The principles for extension of time for filing appeals were stated by the Supreme Court Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR where it upheld its earlier decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) as follows:- ‘29] As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:1.extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;2.a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;3.whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;4.where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5.whether there will be any prejudice suffered by the respondents, if extension is granted;6.whether the application has been brought without undue delay; and 7. whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied].’’ The court upholds the Salat decision to apply in the instant application. 20.The Applicant stated the delay was caused by the failure of their advocate to implement their instructions to file appeal. Indeed there was no evidence placed before the court to that effect The delay was of approximately 3 months which is not inordinate. The delay was explained to be a blame against the previous advocate, though no documentary evidence was placed before the court. I gave the applicant the benefit of doubt taking into account the applicant was represented by a different advocate at the trial court. The applicant annexed a copy of the intended memorandum of appeal before the court, which, among other things, raised a point of law, being whether the claims awarded were statute time-barred for being a continuing claim. I find those are triable issues. 21.I exercise discretion in favour of the applicant and extent time for the applicant to file appeal out of time. Whether the application for the stay of execution is merited. 22.It is instructive to note that the impugned Judgment is dated 11th September 2025. The Employment and Labour Relations Court (Procedure) Rules 2024 on stay of execution in case of appeal states:- ‘’21. (1) Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court(2)An application for stay of execution pending appeal shall be filed in the appeal file.’’ 23.Since the Rules are silent on the conditions for granting stay then the lacuna is addressed by Order 42 Rule 6 (2) of the Civil Procedure Rules to wit:-‘’(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.’’ 24.I have granted the Intended Appellant leave to lodge their appeal out of time. No application for stay pending appeal was filed in the Trial Court. Indeed, a garnishee application was pending. 25.This Court’s mandate, therefore, is to decide whether the Intended Appellant has met the conditions for the grant of an order of stay of execution, pursuant to Order 42 Rule 6 (2) of the Civil Procedure Rules. Firstly, has the Intended Appellant proved that they will suffer substantial loss if the orders are not granted? The Intended Appellant insists that they will suffer substantial loss since the Respondent has already commenced execution by issuance of garnishee proceedings. 26.The court noted that the respondent had not demonstrated his ability to re-pay the decretal sum. On the party on whom the burden of proving the Respondent’s financial ability falls, in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR)The Court of Appeal stated that:“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge — see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.” As the Respondent has not shown his ability to repay the decretal sum if he proceeds with execution and the appeal succeeds, I find and hold that the Applicant is likely to suffer substantial loss if a stay of execution is not granted. 27.Further, the law contemplates that a litigant who intends to appeal the decision of a court may be granted stay of execution of the said decision, on condition that they deposit a security for the performance of the decree. The respondent submitted that the condition should deposit of the decretal sum in joint interest earning account held by counsel of the parties 28.The issue of delay was addressed during the extension of time. 29.The court finds that there is a high likelihood of the appeal being rendered nugatory in the event the Intended Appellant is successful in the appeal, as their assets are likely to be attached and there is no certainty that the Respondent will be able to repay the decretal sum. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal gave guidance on how a Court should exercise discretion in an application for a stay of execution, that: -‘If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458.’’ The court allows the stay of execution, the security of performance of the decree having been deposited under the interim order. 30.In the upshot, the application is allowed as follows:-a.The court is pleased to extend time for filing an appeal. The memorandum of appeal is ordered to be filed afresh within 21 days of this order. The record of appeal be filed in 45 days. Mention on 20th July 2026 before the Presiding Judge, Appeals Division, for re-allocation of the matter before a Judge in the division.b.The Court grants an Order of stay of execution Judgment/decree delivered on the 11th September 2025 (Mavoko ELRC E085 of 2024 between the parties by Hon E. Suter pending the hearing and determination of the intended appeal. The security deposited in court to abide the determination of the intended appeal.c.Costs of the application to the respondent. 31.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant:- MidambaRespondent: - Kuyoh