https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2079

Farmers Choice Ltd v Barasa (Civil Appeal E025 of 2026) [2026] KEELRC 2079 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2079 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Civil Appeal E025 of 2026 MA Onyango, J July 16, 2026 Between Farmers Choice Limited Appellant and Benson Barasa Respondent Ruling 1.The application herein is dated 17th April, 2026 and is filed by the Appellant who seeks orders that: -a.That this application be certified as urgent and service of the same be dispensed with in the first instance.b.That this Honourable court be pleased to grant a temporary order of stay of execution as against the judgment/ decree in Eldoret CMCC No.565 of 2017-Benson Barasa-vs-Eldoret CMCC No 565 of 2017-Benson Barasa v Farmers Choice Limited pending inter parties hearing of the application herein.c.That this Honourable court be pleased to grant a temporary order of stay of execution as against the judgment/decree in Eldoret CMCC No. 565 of 2017-Benson Barasa v Eldoret CMCC No 565 of 2017-Benson Barasa v Farmers Choice Limited pending the hearing and determination of the application herein.d.That the court be pleased to grant the Applicant leave to file before it, an Appeal out of time against the whole of the award and/or Judgment and decree in Eldoret CMCC No 565 of 2017-Benson Barasa-vs- Farmer's Choice Ltd.e.That upon grant of leave to Appeal out of time, the Memorandum of Appeal lodged herein be deemed as duly and properly/regularly filed.f.That in the event Prayer No. 4 is granted, pending the hearing and determination of the Applicant's Appeal, there be a stay of execution of the Judgment and decree in Eldoret CMCC No 565 of 2017-Benson Barasa-vs-Farmer's Choice Ltd.g.That this Honourable court be pleased to grant a temporary order of stay of execution as against the judgment / decree in Eldoret CMCC No.565 of 2017-Benson Barasa v Farmers Choice Limited pending the delivery of a Ruling in Eldoret HCCA No.E015 of 2026 Fartmer's Choice Limited v Benson Barasa.h.That this Honourable Court be pleased to issue any further or other Orders it deems reasonable, necessary and just in the circumstances.i.That the Costs of and incidental to this Application be costs in the intended Appeal. 2.The application is made under section 12 of the Employment and Labour Relations Court Act, Rules 18 of the Employment and Labour Relations Court (Procedure Rules), section 1, 1A, 3A, 18, 63(e) and section 79G of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Article 159(2)(d) of the Constitution, the inherent powers of the Court and all other enabling provisions of the law. 3.The Application is supported by the grounds set out on its face and the Supporting Affidavit sworn by Walter LaktaNo Kessem, the Applicant herein, who deposes as follows: -a.That stay of execution orders in the suit Eldoret CMCC No.565 of 2017-Benson Barasa v Farmers Choice Limited have lapsed.b.That there is imminent risk of attachment and sale and/or further execution of the judgment/ decree in the suit Eldoret CMCC No.565 of 2017-Benson Barasa v Farmers Choice Limited.c.That the Applicant herein is aggrieved with the whole of the Judgment and Decree in Eldoret CMCC No.565 of 2017.d.That the Applicant wishes to Appeal the Judgment and Decree in Eldoret CMCC No.565 of 2017 before this Honourable court.e.That the statutory period allowed for filing an Appeal as of right in Eldoret CMCC No.565 of 2017 has already lapsed.f.That this Honourable court is vested with Appellate Jurisdiction to hear and determine employer-employee employment disputes, thus vested with jurisdiction to handle the Applicants grievance presented by way of Appeal.g.That there is a Ruling pending delivery in the suit Eldoret HCCA No.E015 of 2026 Fartmer's Choice Limited v Benson Barasa, which touches on the issue of directions as concerns jurisdiction of the High court to handle the said Appeal and viability of the said Appeal.h.That the filed Appeal is with regard to the whole of the award issued by the trial court in the suit Eldoret CMCC No.565 of 2017-Benson Barasa-vs-Eldoret CMCC No 565 of 2017-Benson Barasa v Farmers Choice Limited whereby judgement was delivered in favour of the Respondent/plaintiff in the said suit on 10/12/2025.i.That the suit Eldoret CMCC No.565 of 2017 is awork injury claim wherein the Respondent claims under common law for negligence, breach of duty of care and/or breach of contract and the same proceeded before the Chief Magistrates court in Eldoret .j.That the Appeal Eldoret HCCA No.E015 of 2026 Fartmer's Choice Limited v Benson Barasawas erroneously lodged in High Court Civil Division instead of the Employment and Labour Relations Court due to an inadvertent error/mistake on the part of the Applicant’s Advocates.k.That the Applicant has since been convinced that the Appeal case Eldoret HCCA No.E015 of 2026 Fartmer's Choice Limited v Benson Barasais incompetent and a Non-starter having been filed in a wrong forum/court with No Appellate jurisdiction over WIBA claims and thus is bound to be dismissed.l.That the Hearing of the Appeal case Eldoret HCCA No. E015 of 2026Fartmer's Choice Limited v Benson Barasais yet to kick off and directions in the Appeal yet to be taken.m.That a dismissal and/or intended withdrawal of the Appeal suit Eldoret HCCA No. E015 of 2026 Fartmer's Choice Limited v Benson Barasais imminent.n.That the Applicant still wishes to Appeal against the whole of the judgment/decree in Eldoret CMCC No.565 of 2017-Benson Barasa v Eldoret CMCC No 565 of 2017 albeit before a competent court of law such as the court herein.o.That the Applicant prays for a chance to exercise its right of Appeal before the Honourable court herein, as it was aggrieved by the whole of the judgment/decree in Eldoret CMCC No.565 of 2017.p.That the Applicant shall suffer irreparable loss and damage if orders for Appealing out of time the whole of the judgment/ decree in Eldoret CMCC No.565 of 2017 are Not issued since the Applicant shall have lost a chance at the seat of justice.q.That the decretal sum in Eldoret CMCC No.565 of 2017 involves a colossal amount of money totaling Kshs. 2,550,169 as at 4th February,2026 which when executed against the Applicant will cause an irreparable loss to the Applicant that wishes to exercise its right to Appeal.r.That the Respondent is a man of straw and shall Not be able to refund the said monies upon a successful Appeal.s.That the Appeal by the Applicant is viable with reasonable chance of success and the Applicant urges this court to allow it exercise the right of Appeal before it.t.That the Applicant and its insurer, Jubilee Insurance Company Limited currently operating and/or trading as Sanlam Allianz General Insurance (Kenya) Limited, are ready and willing to abide by any such reasonable conditions as the court may order in regard of the prayers sought herein.u.That the Applicant together with its insurer are ready and willing to abide by any such reasonable conditions as the court may order in regard of the prayers sought herein and ready and willing to furnish security pending the hearing and disposal of the Appeal and are willing to deposit the whole of the decretal sum into a joint interest earning account as security for grant of orders sought.v.That the Applicant brings this application in good faith, for the interest of justice and without undue delay.w.That it is in the interest of justice that the application herein be allowed.x.That this Honourable court has jurisdiction to grant prayers sought. 4.The application is opposed by the Respondent through the replying affidavit of Benson Barasa, the Respondent herein sworn on 6th March 2026. The Respondent deposes that the claim before Eldoret CMCC No. 365 of 2017 was filed as a work injury claim and proceeded as such. That at the material time Eldoret Chief Magistrates Court had jurisdiction to hear and determine matters relating to work injury claims pursuant to directions/guidelines issued by the Honourable The Chief Justice in April, 2023. That judgement was delivered on 10th December, 2025. 5.The Respondent deposes that the Appellant was aggrieved by the whole judgment and decree and Appealed to the High Court vide Eldoret HCC Appeal No. E015 of 2026 Farmer's Choice Limited v Benson Barasa. He deposes that the Applicant ought to have kNown that the court did Not have jurisdiction over work injury claims. 6.The Respondent deposes that the instant application is brought after undue delay and No justifiable reasons for delay have been demonstrated by the Applicant to warrant the extension of time for filing of the purported Appeal out of time. That filing an Appeal in a court without jurisdiction is a fundamental error which canNot be excused as an ordinary inadvertence to justify the delay and warrant leave to Appeal out of time. 7.Mr. Barasa deposes that the Applicant is approbating and reprobating by submitting itself to the jurisdiction of this court after formally denying the same and admitting to the appellate jurisdiction of the High Court in its supplementary Affidavit dated 20th February, 2026. That the application is an abuse of court process designed to frustrate the Respondent by clogging of the wheels of justice to prevent the Respondent from enjoying the fruits of his judgement. 8.Mr. Barasa deposes that the application is misconceived, time barred, legally untenable and brought in bad faith. He urges the court to dismiss the application with costs. 9.The application was disposed of by way of written submissions. The Appellant’s submissions are dated 15th May, 2026 while the Respondent’s submissions are dated 19th May, 2026. Applicant’s Submissions 10.In its submissions the Applicant submits on the following heads:a.Explanation for delay;b.Length of delay;c.Whether delay was intentional;d.Whether applicant acted diligently after discovering defaulte.Whether the intended Appeal is arguable;f.Prejudice to respondents;g.Interests of substantive justice.h.Whether this Honourable court has jurisdiction to grant prayers sought in the Application. 11.On issues 1, 2 3 and 4 the Applicants submits that the issues have been addressed in the grounds and affidavit supporting the application dated 17th April, 2026. It is submitted that the delay was Not intentional but was due to an oversight and/or inadvertent mistake on the part of the Applicant’s advocate owing to the fact that the nature of issues at the trial court was inadvertently Not looked into. It is submitted that mistakes of counsel ought Not to be visited upon the Applicant. 12.The Applicant states that it sought clarification on the court where the Appeal should be filed as reflected in the ruling dated 11th March, 2026 at page 5 thereof. 13.The Applicant submits that the application herein was prepared the day after the ruling in the application dated 11th March, 2026 in Eldoret HCCA No. E015 of 2026. That the advocate took Note of the fact that jurisdiction is a key issue and that time was also of essence and thus it filed the application dated 11th March, 2026 under certificate of urgency, for determination at the earliest instance. 14.The Applicant further submits that compliance with pre-conditional orders of stay of execution granted vide the trial court ruling dated 11th March, 2026 was Not done since the parties were waiting for the court’s determination on the application dated 11th March, 2026. 15.It is submitted that upon counsel for the Applicant realizing that the Appeal was lodged in the wrong forum it moved this court under certificate of urgency. That the Applicant further made it clear that it intended to withdraw the Appeal in Eldoret HCCA No. E015 of 2026, having come to the conclusion that the Appeal was lodged in the wrong forum. 16.The Applicant further submits that in the subsequent ruling delivered on 4th May, 2026 in respect of the application dated 11th March, 2026 the High Court found that it had No jurisdiction to handle the Appeal. The Applicant submits that the Appeal has since been withdrawn via Notice of Withdrawal of the Appeal case in Eldoret HCCA No. E015 of 2026. 17.The Applicant submits that it has explained the reasons for the delay in lodging Appeal before this court and further demonstrated that it acted diligently upon discovering the error. It prays that this court finds the delay excusable and extends time allowing the Memorandum of Appeal filed herein dated 17th April, 2026 to be admitted for purposes of canvassing the Appeal. 18.On the issue whether the intended Appeal is arguable the Applicant submits that the grounds of Appeal as set out in the Memorandum of Appeal dated 17th April, 2026 are weighty and require the court’s determination. It further submits that the Respondent and its insurer are willing to abide by any conditions set by the court with regard to prayers sought in the instant application in terms of furnishing security pending Appeal. That they are amenable to depositing the whole of the decretal sum in Eldoret CMCC No. 565 of 2027 in a joint interest earning account in the names of parties advocates on record or any fresh conditions that may emanate from this court. 19.On the issue whether the Respondent shall suffer prejudice if the Applicant’s prayers are granted, the Applicant submits that No prejudice or irreparable loss will be suffered by the Respondent in the event the orders sought are granted since the Respondent shall have a chance to participate in the Appeal. 20.It is submitted further that the Respondent has Not demonstrated any real prejudice he will suffer if the Applicant’s prayers are allowed. 21.On the issue of jurisdiction, the Applicant submits that it has No doubt that this court has jurisdiction to determine its intended Appeal. That this issue has been clarified in the ruling dated 4th May 2026 on the Applicant’s application dated 11th March, 2026. The Applicant Notes that this court’s jurisdiction is provided for in Article 165(2) as read with Article 165(b) of the Constitution and section 12(1) and (2) of the Employment and Labour Relations Court Act, that the issues in Eldoret CMCC No. 565 of 2027 concerns a dispute between an employer and employee relating to an injury at work. 22.The Applicant urges the court to exercise its inherent jurisdiction under section 3A of the Civil Procedure Act to grant the orders sought, relying on the decision in RAJ PAHADUR RAS RAJA V SETH HIRALAL as observed by the Supreme Court of India that “the inherent power has Not been conferred on the court; it is a power in the court by virtue of its duty to do justice between the parties before it.” The Applicant submits that justice must Not be sacrificed on the alter of strict adherence to provisions of procedural law which at times create hardship and unfairness. 23.The Applicant further relies on Article 159(2) of the Constitution and section 63 of the Civil Procedure Act on upholding the overriding objective/principle of substantive justice. The Respondent’s submissions 24.In its submissions the Respondent framed three issues for determination being: -i.Whether the Applicant’s application for leave to Appeal out of time is merited,ii.Whether there ought to be stay of execution of the judgment in Eldoret CMCC No. 565 of 2027 Benson Barasa v Farmer's Choice Limitediii.Who bears the costs. 25.On the first issue, the Respondent submits that the relationship between him and the Applicant having been that of employer and employee the court with jurisdiction to determine the Appeal is the Employment and Labour Relations Court as provided in section 12 of the Employment and Labour Relations Court Act. That this fact ought to have been in the Applicant’s kNowledge from inception of the suit. 26.The Respondent further submits that Rule 12 of the Employment and Labour Relations Court (Procedure) Rules provides for timelines for filing Appeals arising from the lower court’s decisions in respect of work injury claims, to the Employment and Labour Relations Court. That the rules further provide for extension of time at rule 18. He submits that rule 18 requires the Applicant to demonstrate to the satisfaction of the court the reasons for the iNordinate delay. 27.The Respondent submits that in Kithangari & 4 others v Mutahi (Application E024 of 2024) [2024] KESC 72 (KLR) the court cited with approval the decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, Koikai & Another v Orinda [2025] KEHC 1297 (KLR) where the Supreme Court set the principles of extensions on time. 28.It is submitted that the judgment in respect of which the Appeal is intended was delivered on 10th December, 2025 and the Applicant should have filed an Appeal on or before 8th January, 2026. That instead the Applicant chose to file the Appeal in the High Court which lacked jurisdiction. 29.It is submitted that the instant application has been brought 4 months after the delivery of the impugned judgment, which is iNordinate delay. 30.The Respondent submits that the reason given by the Applicant for the delay being the filing of the Appeal in the High Court in error is Not a valid reason. 31.It is further submitted that the Applicants submission that mistakes of counsel should Not be visited upon the client is Not a valid reason as a litigant has a personal responsibility to show interest in his case as was held in John Sembe Natmasi V Maina Wakhanu and Another[2021] KECA 540 (KLR) and in Habo Agencies Limited V Wilfred Odhiambo Musingo[2015] e KLR. 32.The Respondent submits that he will suffer immense financial, emotional and legal prejudice if the application is granted given that the suit has been in court for close to 9 years. That granting the orders sought in the application would be tantamount to denying the Respondent the fruits of his well-reasoned and just judgment. 33.The Respondent further submits that the Applicant is inviting the court to sanitize its illegality by praying at paragraph 5 of the application that the Memorandum of Appeal lodged before this court be deemed duly and properly/regularly filed should the court grant leave to Appeal out of time. That such practice was frowned upon by the Supreme in the case of Salat v Independent Electoral and Boundaries Commission & 7 Others (supra) where the court held that filing an Appeal out of time before seeking extension of time is tantamount to moving the court to remedy an illegality, is presumptive and inappropriate as No Appeal can be filed out of time without leave of the court and that a document filed out of time without leave is a nullity and incapable of being validated retrospectively by a subsequent order extension of time. 34.On the second issue the Respondent submitted that having established that the application is time barred, irregular and brought in bad faith, hence unmerited, the orders for stay of execution of judgment and decree in Eldoret CMCC No. 565 of 2027 Benson Barasa v Farmer's Choice Limited be declined. 35.On the final issue of costs, the Respondent submits that costs follow the event relying on section 27(1) of the Civil Procedure Act. 36.The Respondent further relies on Geoffrey M. Asanyo & 3 Others v Attorney General [2020] eKLR on the doctrine of stare decisis and submits that this Court is bound by the proNouncements of the Supreme Court on the legal effect of documents filed outside the prescribed timelines without leave. 37.On costs, the Respondent relies on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR and submits that costs ordinarily follow the event. 38.Consequently, the Respondent maintains that the Applicant has failed to satisfactorily explain the iNordinate delay, has Not demonstrated an arguable Appeal and has failed to establish any basis upon which this Court should exercise its discretion in his favor. The Respondent therefore prays that the Application be dismissed with costs. Analysis and Determination 39.I have considered the Application, the affidavits on record, the rival submissions of the parties, and the authorities cited. The main issue falling for determination is whether the Applicant has satisfied the conditions for the grant of leave to Appeal out of time and for grant of orders for stay of execution pending Appeal. 40.Rule 12 of the Employment and Labour Relations Court (Procedure) Rules provides for time of filing of Appeals as follows:12.(1)Where a written law provides for an Appeal to the Court, an appellant shall file a memorandum 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 specified in the written law referred to in sub-rule (1), the Appeal shall be filed within thirty days from the date the decision is delivered. 41.Further, rule 18 provides for extension of time 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. 42.The principles governing applications for extension of time were restated by the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as cited with approval in Endarasha Farmers Cooperative Society Limited v Gichuki (Misc. Application No. E020 of 2023) as follows:i.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;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; andvii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time." 43.Flowing from the above binding authority, it follows that the Court in exercising its discretion whether or Not to extend time for filing an Appeal should consider, among other factors, the length of the delay, the reason for the delay and the degree of prejudice likely to be suffered by the Respondent if the orders sought are granted. 44.Further, in Kithangari & 4 others v Mutahi (Application E024 of 2024) [2024] KESC 72 (KLR) the Supreme Court observed:Although Not in relation to the filing of a Notice of Appeal, in Muya v 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) in determining whether there is iNordinate delay we held that, “[143] the focus should Not be on the length of the delay per se, but also on the justification and reasons, which in turn must be rational and plausible.” Similarly, in Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) we held that “[119] …Where there is delay, the Court must interrogate whether the same is justifiable and thus excusable, or Not. In order to do that, the Court must interrogate the circumstances of the case.” 45.On the first limb regarding the length of delay, there is No dispute that the judgment and decree sought to be Appealed against was delivered on 10th December, 2025. 46.According to Order 50 Rule 4 time does Not run between 21st December and 13th January of the following year. The rule provides:4.When time does Not run [Order 50, rule 4.]Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:Provided that this rule shall Not apply to any application in respect of a temporary injunction. 47.Based on the provisions of Order 50 Rule 4, the 30 days statutory period for filing an Appeal lapsed on or about 3rd February 2026. The present Application is dated 17th April, 2026, about two and a half months after the lapse of the prescribed period. The delay is therefore, undoubtedly, substantial. 48.The Applicant has attributed the delay to the filing of the Appeal at the wrong court. The Applicant filed an Appeal dated 28th January, 2026 at the High Court. It is after the Applicant realized that it had filed the Appeal in the wrong court that it filed the instant application for leave to file the Appeal in this court out of time. 49.The explanation given for the filing of the Appeal at the High Court is that the suit filed at the Magistrates Court was heard as a civil suit and the advocates were of the view that the Appeal would lie with the High Court. 50.The Respondent, on the other hand, contends that the Applicant ought to have kNown that the High Court does Not have jurisdiction over work injury matters and that filing the Appeal in the High Court is Not an excusable error. 51.I do Not agree with the Respondent. The Appeal in the High Court was filed timeously, long before the statutory of 30 days period for filing Appeals lapsed. The explanation by the Applicant, that it was under the mistaken belief that the Appeal lay with the High Court as the suit was heard as a civil matter in the trial court is in my view excusable. The court takes judicial Notice of the confusion that had arisen with respect to the handling of WIBA matters which necessitated clarification by the Chief Justice even after the decision of the Appeal at the Supreme Court on the matter. The court further Notes that before the Work Injury Benefits Act was enacted all work injury Appeals were heard by the High Court. The mistake by counsel on the issue is thus understandable. 52.The court further Notes that the Appellant was Not sitting on its laurels while time was running out. It was doing what in its view was the right course of action, albeit mistaken. It filed the Appeal in the High Court timeously. It is thus Not guilty of latches. 53.This Court is mindful that the discretion to extend time is intended to facilitate substantive justice where circumstances so warrant. In exercising that discretion, the Court is guided by Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities. 54.The Court is further alive to the fact that mistakes or omissions on the part of counsel should Not invariably be visited upon a litigant, particularly where the consequence would be to permanently shut the doors of justice without consideration of the merits of the dispute. The Respondent’s submission that the Applicant ought to have been vigilant is Not relevant in the circumstances of this court where the issue is technical and the Applicant would Not have been the wiser, if his counsel was mistaken on the legal position. 55.On the second limb as to whether the intended Appeal raises arguable issues deserving consideration by this court on Appeal, it is worth Nothing that at this stage, the Court is Not required to determine the merits of the Appeal but merely to ascertain whether the Appeal is frivolous or raises bona fide issues worthy of consideration by the appellate court. 56.From the draft Memorandum of Appeal and the material placed before the Court, the grounds of Appeal as set out in the memorandum of Appeal filed with the instant application raise triable issues warranting the courts consideration. 57.Without expressing any conclusive opinion on the merits of the grounds of Appeal, this Court is satisfied that the issues raised are Not frivolous. 58.Lastly, on the third limb whether the Respondent will suffer prejudice if the orders sought in the application are granted, the Respondent has argued that litigation must come to an end and that he has been in court for almost 9 years. While this concern is legitimate, No specific prejudice has been demonstrated that canNot be compensated by an award of costs. It is my view that taking this case in totality, denying the orders as sought by the Applicant will permanently shut out the Applicant from ventilating its grievance on Appeal. This would be a greater injustice than having the Respondent wait for the determination of the Appeal on the merits. 59.In the circumstances, I find that based on the explanation tendered for the delay, the nature of the issues intended to be raised on Appeal and the need to facilitate substantive determination of disputes on their merits, this Court is persuaded that this is an appropriate case in which to exercise its discretion in favor of the Applicant. 60.The Applicant sought orders of stay of execution pending Appeal. Such orders may be sought either in the trial court or in the appellate court. 61.I Note from the record that the Applicant applied for and was granted orders of stay before the trial court with conditions. The Applicant has Not stated that those conditions are unfair or asked this court to vary the same. Neither has the Respondent raised any issues over the said orders. 62.In view of the fact that the two courts have concurrent jurisdiction in granting stay orders and the trial court has already granted the orders, this court is of the view that the said orders are sufficient and it need Not interfere with the same. The Applicant will therefore comply with the conditional orders of stay granted by the trial court in its ruling dated 11th March, 2026. The time for compliance with the said orders runs from today. 63.The Respondent raised an issue over the filing of the Appeal before leave is granted, against the spirit of the decision of the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others where the court held that filing an Appeal out of time before seeking extension of time is tantamount to moving the court to remedy an illegality, and that a document filed out of time without leave is a nullity and incapable of being validated retrospectively by a subsequent order extension of time. 64.This position as stated by the Supreme Court is correct. However, Rule 20(2) of the Employment and Labour Relations Court (Procedure) Rules provides that an application for stay of execution pending Appeal shall be filed in the Appeal file. In view of the fact that the application for extension of time was filed together with the prayer for stay of execution pending Appeal, the Applicant was compelled to file the Appeal and then file the application in the Appeal file in order to comply with the court’s procedure rules. The court finds that this departure from the decision of the Supreme court is valid as it is sanctioned by the rules. 65.Accordingly, the Application dated 17th April, 2026 is hereby allowed in the following terms: -i.The Applicant is granted leave to file and serve the intended Appeal out of time within fourteen (14) days from the date of this ruling.ii.The Memorandum of Appeal filed together with the Applicant’s application shall be deemed as duly filed upon payment of the requisite court fees within the said period.iii.With respect to the Application for stay of execution the Applicant shall comply with the orders of the trial court dated 11th March, 2026 which granted conditional stay in Eldoret CMCC No. 565 of 2027 Benson Barasa v Farmer's Choice Limited.iv.The Appellant shall in any event pay the costs of the instant application to the Respondent which this court assesses at Kshs. 20,000 to be paid within the next 14 days. 66.Orders accordingly DATED, DELIVERED AND SIGNED ON THIS 16TH DAY of JULY, 2026.M. ONYANGOJUDGE