https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2031

Eska Enterprises Limited v Mogaka (Appeal E256 of 2025) [2026] KEELRC 2031 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2031 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E256 of 2025 DKN Marete, J July 15, 2026 Between Eska Enterprises Limited Appellant and Veronicah Kwamboka Mogaka Respondent Ruling 1.These are twin applications comprising of an application dated 5th August, 2025 and a preliminary objection by the Respondent dated 12th May, 2025. 2.This application seeks inter alia that this court grants leave to appeal out of line against the judgment of the trial court dated 9th May, 2025 and a decree issued on 10th June, 2025 in Ruiru ELRC Case No. E022 of 2023. This is besides stay of execution pending hearing and determination of the intended appeal and also against the warrants of sale hereby issued by Sharleif Auctioneers. It also seeks that the annexed Memorandum of Appeal being deemed as duly filed on payment of the requisite fee. 3.The Respondent in a Replying Affidavit sworn on 12th August, 2025 opposes the application on the basis that the Applicant’s counsel on record is not properly on record for failing to comply with the mandatory provisions of order 9 Rule 9 of the Civil Procedure Rules and that in the absence of leave of court, the law firm has no legal standing to move this court on behalf of the Applicant. It is therefore their case that this motion and certificate of urgency must therefore be struck out with costs for being bad in law and a blatant abuse of court process. 4.Other averments in opposition to the application comes out thus;i.That at trial, the Applicant was throughout represented by the firm of C.K. Chege and Company Advocates.ii.That these advocates appeared even for delivery of judgment and have not made any application to cease acting for the Applicants.iii.That it is not true that the Applicant did not have an advocate at trial.iv.That at judgment, the Applicant was awarded 45 days stay of execution and the execution process started after the lapse of said 45 days on 31st July, 2025.v.That the Applicant has no arguable appeal to warrant it to be granted to stay of execution having not followed the due procedure to terminate the Respondent’s services and as such the termination was unlawful and unfair.vi.The Appellant/Applicant has not demonstrated that they have an arguable appeal.vii.There is no demonstration of substantial loss by the Applicant in the event of non-grant of this application.viii.The Applicant has had more than three months to raise this application and no sufficient reasons have been adduced to explain failure to do this on time.ix.The Respondent concedes to a deposit of decretal sum in a joint interest account in the event of a grant of stay of execution. 5.The Respondent’s further posits that the Applicant’s application is frivolous, an abuse of the court process and is intended to obstruct and delay the course of justice and the same should be dismissed with costs on the following grounds;i.The Applicant is misleading the court that it did not have an advocate on record while it was duly represented by the firm of C.K. Chege Advocates.ii.The Applicant has taken close to 4 months after the lapse stipulated timelines to lodge an Appeal and to file an application seeking to file an appeal out of time and no sufficient reasons have been offered for the delay in filing the application for extension of time.iii.The Applicant has not made any averment to this … court that she has any real prospect of successfully appealing the judgment.iv.The Applicant has not raised any bona fide triable issues that warrant ventilation before this Honourable court.v.The Applicant has not met the threshold for allowing it to lodge an appeal out of time. 6.In all, the Applicant has not been diligent on exercising its statutory right and or failed to lodge an Appeal within the stipulated timelines and the delay occasioned is unexplainable and inordinate in the circumstances. The Applicant in this deliberately seeks to mislead this court. 7.The Respondent further rises a preliminary objection as follows;1.That the application as instituted is fatally incompetent and incurably defective in law and as such cannot stand or be ventilated before this Honourable court as the advocates for the Appellant/Applicant are not properly on record pursuant to Order 9 rule 9 of the Civil Procedure 2010, (revised 2020)2.That the firm of Munene Kathuni and Company Advocates, advocates for Appellant/Applicant have no locus standi in instituting the proceedings herein as it has no recognizable proprietary interests recognized in law to file the current application in court. 8.The Applicant in support of their application posits that they are rightly before court in that once judgment is delivered by the trial court, an appeal to the appropriate forum constitutes a new and separate cause/proceeding. Therefore this awards the parties an opportunity to instruct counsel(s) of their choice for such appeal. Order 9 Rule 9 was only aspires or is intended to operate against post judgment changes in the same cause and not foreclosing new counsel for appeals in the same cause. It is therefore misplaced in the circumstances of this case. This is supported by the authority of Tobias M. Wafubwa v Ben Butali (2017) KECA 142 (KLR) where the Court of Appeal succinctly expresses this position. 9.Besides, the preliminary objection is misconceived in that these proceedings are not a continuation of the trial court proceedings under Order 22 Rule 6 but instead Order 42 Rule 6. There is no requirement for a notice of change of advocate in these circumstances. The new firm of advocates is therefore properly on record. 10.The Applicant in the penultimate submits that the new firm of advocates received instructions to appeal on 5th August, 2025 after execution proceedings had commenced. This explanation is clearly set out in the affidavit in support of this application and also corroborated by the chronology of execution and notices. The period between the delivery of judgment and filing of the application on 5th August, 2025 is therefore explained on the basis of having received formal instructions at such a time. 11.The Applicant’s case overwhelms that of the Respondent. It was never necessary that the Applicant retains the advocate who per took this matter at the trial court in this appeal. The application also meets the criterion required of Order 42 Rule 6 for the grant of stay of execution. This is particularly by offering adequate and reasonable explanation for the delay occasioning a late filing of this application. 12.The preliminary objection raised by the Respondent falls by the wayside. This is because it was never necessary that the Appellant/Applicant retains the firm of C.K. Chege, Advocates in this matter at the appellate stage. The new firm Munene Kathuni and company advocates are in law suited in appearing for the Appellant/Applicant in this intended appeal. They are rightly on record in accordance to law and procedure.I am therefore inclined to allow the application and on the same note dismiss the preliminary objection and order relief as follows;i.The application dated 5th August, 2025 be and is hereby allowed.ii.An order of stay of execution of the judgment delivered on 9th May, 2025 in Ruiru ELRC Cause No. E022 of 2023 and the decree issued on 10th June, 2025 and all or any subsequent orders and warrants execution pending hearing and determination of the intended appeal.iii.The Applicant be and is hereby awarded leave to appeal out of time against the judgment delivered on 9th May, 2025 in Ruiru ELRC Cause No. E022 of 2023.iv.The preliminary objection dated 12th August, 2025 be and is hereby dismissed.v.Appellant/Applicant be and is hereby awarded forty-five (45) days to make, file and serve a Record of Appeal in this cause.vi.Mention on 30th September, 2026 for confirmation of compliances and directions of this court.vii.The costs of this application shall be borne by the Respondent/Objector. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026.D. K. NJAGI MARETEJUDGEAppearances:Mr. Munene instructed by Munene Kathuni & Company Advocates for the Appellant/Applicant.Mr. Kirui instructed by D.C Kirui & Company Advocates for the Respondent Objector.