https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1544

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI ELRC CAUSE NO. E691 OF 2022 (Before Hon. Lady Justice Anna Ngibuini Mwaure) LINDA JOY BUNDE…………………………………...CLAIMANT VERSUS EDU PLUS AFRICA LTD…...............................1st RESPONDENT HUMPHERY KASEMBELI MUCHUMA….......2nd RESPONDENT INUA AI SOLUTION……………………….....3RD RESPONDENT RULING Introduction 1. The 1ST Respondent/Applicant filed a Notice of Motion dated 21st November 2025 under Certificate of urgency seeking the following prayers that: - 1. Spent 2. This Honourable Court be pleased to stay proceedings in this matter pending the hearing and determination of this Application inter-partes. 3. The Honourable Court be pleased to grant a stay of proceedings in this suit pending the hearing and final NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 1 OF 18 determination of Nairobi Civil Appeal No. E976 of 2025 Edu Plus Africa vs Joy Linda Bunde. 4. The Honourable Court be pleased to grant such further orders as may be necessary, just, and expedient. 5. The costs of this Application be in the cause. 2. The application is brought under Order 42 Rule 6 of the Civil Procedure Rules, sections 1A, 1B, 3A, and 3B of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010. 1 st Respondent/Applicant’s case 3. The application is supported by the affidavit of Humphrey Muchuma Kasembeli, one of the Respondent/Applicant’s Director, dated even date as the application. 4. The 1st Respondent/Applicant avers the court (Hon. Mathews Nduma) in its ruling delivered on 13th March 2025, where it allowed the Claimant/Respondent to amend her Statement of Claim and join additional parties. 5. The 1st Respondent/Applicant avers that it was dissatisfied with the ruling and has lodged Civil Appeal No. E976 of 2025, which he believes has strong prospects of success. NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 2 OF 18 6. The 1st Respondent/Applicant avers that unless a stay of proceedings is granted, the appeal will be rendered nugatory, as it will be compelled to defend claims against newly added parties whose inclusion is contested. 7. The 1st Respondent/Applicant emphasizes that proceeding with this matter risks duplication of proceedings, wastage of judicial time, inconsistent findings, and irreparable prejudice to it. 8. The 1st Respondent/Applicant further avers that the expanded claim introduces new factual and legal issues, contrary to the overriding objective of expeditious and just resolution of disputes, and that the balance of convenience favours granting a stay since the Claimant will suffer no prejudice. 9. The 1st Respondent/Applicant concluded that the application was filed without delay and that it is just and equitable for the court to grant the orders sought. Claimant/Respondent’s replying affidavit 10.In opposition to the application, the Claimant/Applicant filed a replying affidavit sworn by the Applicant dated 20th January 2026. NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 3 OF 18 11. The Claimant/Respondent avers that no order has been issued by the Court of Appeal in Civil Appeal No. E976 of 2025 to halt the hearing of the matter. She contends that under Order 42 Rule 6 of the Civil Procedure Rules (Amended 2020), an appeal does not automatically operate as a stay of proceedings. 12. The Claimant/Respondent further avers that the 1st Respondent/Applicant failed to substantively challenge the NCBA Bank letter dated 17th September 2024, which evidenced the movement of substantial funds at the behest of the 2nd and 3rd Respondents, leading to closure of the Respondent’s accounts while the suit was pending. 13. The Claimant/Respondent maintains that the joinder of the 2nd and 3rd Respondents was proper under Order 1 Rule 10(2) of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act, as their participation is necessary for complete adjudication of the dispute. 14. The Claimant/Respondent argues that the Respondent has not demonstrated any substantial loss, whereas she risks irreparable prejudice if the matter is delayed, given the closure of accounts and the risk of rendering any judgment academic. NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 4 OF 18 15. The Claimant/Respondent therefore prays that the application dated 21st November 2025 be dismissed and the claim proceed expeditiously in line with Article 159(2)(b) of the Constitution of Kenya, 2010, which requires that justice shall not be delayed. 16. Parties canvassed the application by way of submissions. 1 st Respondent/Applicant’s submissions 17. The 1st Respondent/Applicant submitted that under Order 42 Rule 6 of the Civil Procedure Rules, an appeal does not automatically operate as a stay unless the court appealed from orders so for sufficient cause. The 1st Respondent/Applicant relied on the case of Kenya Commercial Bank Limited V Nicholas Ombija [2009] KECA 228 (KLR), where the Court of Appeal held that an Applicant seeking stay must show that the intended appeal is arguable and that, unless the stay is granted, the appeal would be rendered nugatory. Additionally, in Port Florence Community Health Care v Crown Health Care Limited [2022] KEHC 2848 (KLR), the court emphasized that the key consideration is whether the appeal would be rendered nugatory, cautioning NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 5 OF 18 courts not to delve into the merits of the appeal itself. 18. The 1st Respondent/Applicant maintained that the appeal is arguable, citing Stanley Kangethe Kinyanjui v Tony Ketter & 5 others [2013] KECA 378 (KLR), where the Court of Appeal held that an arguable appeal is one that is not frivolous and deserves full consideration. The 1st Respondent/Applicant argued that the draft memorandum of appeal raises several substantial grounds, the most significant being that the trial court wrongly allowed amendment of the Statement of Claim and joinder of the 2nd and 3rd Respondents without proper basis under Order 1 Rule 10(2) of the Civil Procedure Rules, thereby transforming a straightforward salary arrears claim into a complex dispute involving fund transfers, contrary to the objectives in sections 1A, 1B, and 3A of the Civil Procedure Act. Since the alleged fund transfers are already the subject of Milimani HCCCOMM E480 of 2022, the joinder raises jurisdictional concerns. This alone, they argued, makes the appeal arguable, with other grounds also presenting weighty legal and procedural issues. The 1st Respondent/Applicant further contended that, NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 6 OF 18 contrary to the Claimant/Respondent’s assertions, their Replying Affidavit of 16th October 2024 addressed the NCBA letter of 17th September 2024, explaining the transactions were legitimate and unrelated to the claim, and that the court’s reliance on those documents without allowing full rebuttal raises questions of fairness and natural justice. 19.The 1st Respondent/Applicant submitted that if the appeal succeeds, the amendments and joinder of the 2nd and 3rd Respondents will be nullified, restoring the suit to its original form. Proceeding with the case before the appeal is determined would compel it to defend an expanded claim involving new parties and issues that are themselves under appellate scrutiny. This, it contends, would waste judicial time and resources, risk inconsistent findings, and cause irreparable prejudice through unnecessary costs and participation in proceedings that might later be void citing the case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR in support of that proposition. The Claimant/Respondent, however, would not suffer substantial prejudice from a short stay since the NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 7 OF 18 original claim remains intact and no evidence of imminent asset dissipation has been shown. 20.Lastly, the 1st Respondent/Applicant submitted it can deposit Kshs.25,278,247.15/= as security is deemed misconceived, as Order 42 Rule 6(2)(b) of the Civil Procedure Rules applies to stays of execution, not stays of proceedings, and imposing such a condition would be punitive and without jurisdictional foundation. 21. The 1st Respondent/Applicant submitted that the Claimant/Respondent’s argument on lack of jurisdiction is incorrect, as Order 42 Rule 6 of the Civil Procedure Rules empowers the trial court to grant a stay for sufficient cause before the appellate court assumes jurisdiction, citing the case of Silvanus Kizito v Edith Nkirote Mwiti [2021] KEHC 6169 (KLR) in support of that proposition. The 1st Respondent/Applicant emphasizes that the trial court is the proper forum for such applications and that the filing was timely, not delayed, referencing Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR). 22.The claim of delay tactics under Article 159(2)(b) of the Constitution is dismissed, given the NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 8 OF 18 prompt filing and need to preserve the status quo pending appeal. In conclusion, the 1st Respondent/Applicant submitted that it has met the twin requirements for a stay and an arguable appeal and risk of the appeal being rendered nugatory without the order and that the balance of convenience and justice favour granting the stay. 23. The 1st Respondent/Applicant therefore prays that the application dated 21st November 2025 be allowed. Claimant/Respondent’s submissions 24. The Claimant/Respondent submitted that the application is unmerited, relying heavily on case law to show that the legal threshold has not been met. The Claimant/Respondent relied on Order 42 Rule 6(1) of the Civil Procedure Rules provides that: “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause….” 25.The Claimant/Respondent relied on the case of Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR), which in turn NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 9 OF 18 referenced William Odhiambo Ramogi & 2 Others v Attorney General & 3 Others [2019] eKLR, a 5 judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings, authoritatively laid out the principles our courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher court. In Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), Global Tours & Travels Ltd (Nairobi HC Winding Up Cause No. 43 of 2000), and David Morton Silverstein v Atsango Chesoni [2002] KECA 287 (KLR) to outline six principles governing stay of proceedings as follows: a.First, there must be an appeal pending before the higher court; b.Second, where such stay is sought in the court hearing the case as opposed to the higher court which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher court. This is because, due to the potential of an NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 10 OF 18 application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the court of which an appeal is preferred because such a court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or otherwise arguable; d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e.Fifth, the Applicant must demonstrate that there are exceptional circumstance which make stay of proceedings warranted as opposed to having the case concluded and all arising grievance taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the Application for stay was filed expeditiously and without delay. NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 11 OF 18 26. The Claimant/Respondent further relied on Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR), where the court held that stay applications should not cause unnecessary delay or increase costs, and again on Turbo Highway Eldoret Ltd v Dominic Njenga Muniu(supra), which stressed that exceptional circumstances must be demonstrated to justify stay of proceedings. 27. The Claimant/Respondent submitted that the 1st Respondent/Applicant failed to explain why the application was not filed in the Court of Appeal (Civil Appeal No. E976 of 2025), failed to show that the appeal is arguable or that it would be rendered nugatory, and filed the application eight months after the ruling of 13th March 2025, contrary to the requirement of expeditious filing. 28. The Claimant/Respondent concludes that granting the stay would delay justice, contravene Article 159(2)(b) of the Constitution of Kenya, 2010, and frustrate the overriding objective of expeditious resolution of disputes, urging the court to dismiss the application with costs. NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 12 OF 18 Analysis and determination 29.The court has considered the motion on record, the affidavits and submissions by both parties. The issue for determination is whether the application to stay proceedings pending the hearing in the Court of Appeal is merited before this Honourable Court. 30. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) the court cited Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” “This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.” “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 13 OF 18 is clearly no cause of action in law or in equity. The application for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 31. The court reiterates the case of Turbo Highway Eldoret Ltd v Muniu(supra) set out the exceptional circumstances must be demonstrated to justify stay of proceedings. In this instant case, in its ruling of 13th March 2025, Hon. Justice Mathews Nduma allowed the Claimant/Respondent to amend her Statement of Claim and join additional parties. Dissatisfied, the 1st Respondent/Applicant lodged Civil Appeal No. E976 of 2025, arguing that without a stay of proceedings the appeal would be rendered nugatory, as it would be forced to defend claims against newly added parties. It contends that proceeding risks duplication, wasted judicial time, inconsistent findings, and irreparable prejudice, while the expanded claim introduces new issues contrary to the objective of expeditious justice. The 1st Respondent/Applicant submits that the balance of convenience favours granting a stay since the Claimant will suffer no prejudice. Conversely, the NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 14 OF 18 Claimant/Respondent argues that no stay order has been issued by the Court of Appeal, and under Order 42 Rule 6 of the Civil Procedure Rules, an appeal does not automatically halt proceedings. She maintains that the Applicant failed to challenge the NCBA Bank letter of 17th September 2024, which showed fund movements by the 2nd and 3rd Respondents leading to account closures, and that their joinder was proper under Order 1 Rule 10(2) of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act. The Claimant/Respondent asserts that the 1st Respondent/Applicant has not shown substantial loss, while she risks irreparable prejudice if delayed, and therefore prays that the application be dismissed with costs. 32. The court has considered the principles for grant of stay of proceedings. For one, there should be an arguable appeal. The arguable appeal is Not necessarily that it must succeed but is that it is not frivolous and ought to be argued fully before an appellate court. This was the holding in the case of PORT FLORENCE COMMUNITY HOSPITAL-VS- CROWN HEALTH CENTRE (Supra). The annexed Memorandum of NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 15 OF 18 appeal dated 15th November 2025 satisfies that proviso. 33. The court also considered if the appeal would be rendered nugatory if the case proceeds for hearing. In answer to that, the appeal is from the Ruling of Justice J.A Mathew Nduma related to whether the case would have been filed in a commercial court or in this court. Secondly, the joinder of the 2nd and 3rd Respondents is in issue. It is crucial to interrogate these issues and determine them in the Appellate court. Definitely, if the case proceeds in this court before those issues are determined, the Applicant would suffer substantial loss and more so, if case is decided in their favour. 34.The court is of the view that the 1st Respondent/Applicant has satisfied the criteria for stay of proceedings as outlined in caseTurbo Highway Eldoret Ltd v Muniu(Supra). The court noted that there is a pending appeal in Court of Appeal Civil Appeal No. E976 of 2025, and to avoid conflicting orders between the trial court and the appellate court, it is more prudent to stay the proceedings rather than proceed with these proceedings at this stage. In essence, the court NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 16 OF 18 reasoned that halting the ongoing proceedings would preserve the integrity of the appellate process, prevent duplication, and ensure consistency in judicial outcomes. 35.The court therefore grants stay of proceedings in this suit awaiting final determination of Nairobi Civil Appeal No. E976 of 2025. The court therefore grants the Application as prayed. 36. The costs of the application will be in the cause. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 5th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 17 OF 18 judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NBI ELRC CAUSE NO. E691 OF 2022 RULING PAGE 18 OF 18