https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2350

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E443 OF 2025** *(Before D. K. N. Marete)* **COLNET LIMITED…………………………………………APPELLANT/APPLICANT** **VERSUS** **BARASA SIBOLO & 135 OTHERS………………………………………RESPONDENTS** **RULING** This is an application by way of a Notice of Motion dated 18th December, 2025. The Applicant seeks for orders as follows; 1. *Spent.* 2. *That the Honourable Court do grant the Appellant/Applicant an order of stay of the execution of the judgement issued against the Appellant/Applicant on the 3rd of December, 2025, pending hearing and determination of this Application.* 3. *That the Honourable Court do grant the Appellant/Applicant an order of stay of the execution of the judgement issued against the Appellant/Applicant on the 3rd of December, 2025, pending hearing and determination of this Appeal.* 4. *That the Respondents bear the costs of this application.* The Applicant's case is that it is aggrieved by the finding of the trial court that its termination of the Respondents on account of redundancy was unlawful and unfair and that the awards in favour of the 105 Respondents, totalling Kshs. 32,764,483.00, are excessive. The Applicant deposes that it is apprehensive that, given the size of the decretal sum and the number of judgment creditors, individual dissipation of the sums awarded before the appeal is heard and determined would render the appeal nugatory. The Applicant accepts that it must furnish security and offers to do so as the court may direct. The Respondents oppose the application, submitting that the Applicant has not demonstrated substantial loss beyond asserting that the decree is large and that the Respondents are former employees likely to spend any amounts received. The Respondents seeks to rely on the authority of **Kenya Shell Limited v Kibiru [1986] KLR 410** for the proposition that a bare assertion that a sum of money is large does not establish substantial loss without more. The Respondents further contends that the Applicant has not proposed a specific, tangible or measurable form of security, and that a general expression of willingness to furnish security does not satisfy the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules. The court has considered the Notice of Motion, the supporting and replying affidavits, the rival written submissions and the authorities cited. The jurisdiction to grant a stay of execution pending appeal is donated by Order 42 Rule 6 of the Civil Procedure Rules as read with Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024. To succeed, an applicant must demonstrate: whether it stands to suffer substantial loss unless a stay is granted, whether the application has been made without unreasonable delay, whether it has offered, or ought to be directed to furnish, security for the due performance of the decree, whether the intended appeal raises arguable grounds; and where the balance of convenience and the interests of justice lie. On substantial loss, the court accepts the Respondents' submission that a decree being capable of execution, or the decretal sum being large, does not without more amount to substantial loss within the contemplation of Order 42 Rule 6(2): **Kenya Shell Limited v Kibiru**, supra. That said, the position is different where, as here, the judgment creditors number 105 individual former employees. It is reasonable to expect that, once each receives their share of the decretal sum, those monies would be applied to personal and living expenses, leaving little or nothing to recover should the appeal ultimately succeed. This places the Respondents in a materially different position from a corporate judgment creditor with identifiable, realisable assets against which recovery could later be pursued. On that basis, and to the extent required at this interlocutory stage, the court is satisfied that the Applicant has demonstrated a real risk of substantial loss should execution proceed before the appeal is determined. On delay, the judgment was delivered on 3rd December 2025 and this application was filed on 18th December 2025, a period of fifteen days. This is within any reasonable definition of expedition. The delay limb is satisfied. On security, the Applicant has not proposed a specific sum or form of security beyond a general expression of willingness to deposit as ordered. The Respondents are correct and appreciates that this falls short of the requirement under Order 42 Rule 6(2). The court will accordingly exercise its discretion to direct the form and quantum of security. Having regard to the total decretal sum of Kshs. 32,764,483.00 and the need to balance the Applicant's right to pursue the appeal against the Respondents' legitimate interest in the fruits of the judgment, the court considers that a deposit of thirty percent of the total decretal sum, being Kshs. 9,829,345.00 into a joint interest-bearing account in the names of the parties' advocates or into court, within sixty (60) days, is a proportionate and just condition for the grant of stay. On the arguability of the appeal, the threshold is a low one: an appeal is arguable if it raises a single *bona fide* ground that is not frivolous or an abuse of process. The Applicant's grounds, which include a challenge to the finding of unlawful termination and to the quantum of the awards, raise questions that are not manifestly unarguable. This limb is satisfied. On the balance of convenience and the interests of justice, the Respondents are former employees who have awaited satisfaction of their judgment since 3rd December 2025. Their interest in the fruits of the judgment is real and immediate. Against that, the appeal raises arguable grounds, and execution before determination of the appeal, in circumstances where restitution would be practically difficult given the number and individual circumstances of the judgment creditors, would risk rendering the appeal academic. A conditional stay adequately protects both interests. I am therefore inclined to allow the application on the following terms; 1. There shall be a stay of execution of the judgment delivered on 3rd December, 2025 and the decree issued thereon in MCELRC No. E094 of 2021, pending the hearing and determination of this appeal. 2. The stay granted in order (ii) above is conditional upon the Applicant depositing the sum of Kshs. 9,829,345.00 (being thirty percent (30%) of the total decretal sum of Kshs. 32,764,483.00 into a joint interest-bearing account in the names of the parties' respective advocates, or, failing agreement, into court, within sixty (60) days of the date of this ruling. 3. The Applicant shall take such further and expeditious steps as are necessary to prosecute the appeal, including the filing of the Record of Appeal within the time prescribed by the Employment and Labour Relations Court (Procedure) Rules, 2024. 4. The costs of this application shall abide the outcome of the appeal. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Museve instructed by J.A Guserwa & Company Advocates for the Appellant/Applicant. 2. Mr. Kirwa instructed by Mwakio Kirwa & Company Advocates for the Respondents.