https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1934

Great Rift Shuttle Services Ltd v Ng’ang’a (Appeal E027 of 2026) [2026] KEELRC 1934 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1934 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Appeal E027 of 2026 MA Onyango, J July 2, 2026 Between Great Rift Shuttle Services Ltd Appellant and Raphael Kimani Ng’ang’a Respondent Ruling 1.The application before me for determination is dated 16th April, 2026 and has been brought by the Appellant/Applicant under the provisions of Rule 21 of Employment and Labour Relations Court (Procedure) Rules, 2024, and Order 42 Rule 6 of the Civil Procedure Rules. 2.The Applicant seeks orders that:a.Spent;b.Spent;c.3.Pending the hearing and determination of this appeal, the Honourable Court be pleased to stay the execution arising from the Judgment of Hon. Daniel Sitati Sifuma delivered on 8th April 2026;d.Costs of this Application be provided for. 3.The application is supported by the affidavit of Rachael W Nganga, the Director of the Applicant sworn on 16th April, 2025.1 4.The grounds upon which the application is made are contained at the foot of the application as reiterated in the supporting affidavit as follows:a.On 8 April 2026, the Magistrate Court in Eldoret gave its judgment in MCELRC EO21 OF 2023 and awarded the Respondent a total of Kshs 801,000/-for unfair termination;b.The Appellant is dissatisfied with the judgment and wishes to challenge the same before this Court;c.The Appellant has a prima-facie case to wit; it never terminated the Respondent from employment and presently the Respondent is facing a criminal charge in Eldoret CMCR No 1955 of 2022 as against the employer specifically on stealing by servant, forgery and fraudulent accounting, in which case he has been placed on his defence;d.The Hon. Magistrate went ahead and awarded claims which had not been proved by the Respondent;e.There is a reasonable apprehension that the Respondent will move to execute as against the Appellant for the Decretal Sum whilst the appeal is still pending;f.The Appellant stands to suffer irreparable harm if the amounts are paid as there are no reasonable prospects of recovery if the appeal is eventually allowed;g.The application has been filed without delay;h.It is only fair and just that this matter be certified and heard urgently. 5.The application is opposed by the Respondent through the Replying affidavit of Raphael Kimani Ng’ang’a, the Respondent sworn on 24th April, 2026 in which he deposes that the application is bad in law, fatally defective, frivolous, vexatious, scandalous and an abuse of court process hence the same ought to be dismissed in limine. Further, that the Applicant does not meet the threshold for granting stay of execution orders as the Applicant has not demonstrated that it will suffer irreparable loss to enable the court exercise its discretionary power in favour of the Applicant by granting the orders sought. 6.The Respondent further deposes that the application is premature. 7.The Application was disposed of by way of written submissions, which both parties have filed. 8.I have considered the application, the replying affidavit, the submissions filed by the parties and the authorities cited. The only issues for determination are whether the Applicant meets the threshold for grant of the orders sought it its application and what orders should issue. 9.Order 42 rule 6(2) of Civil Procedure Rules provides as follows: -“(2)No order for stay of execution shall be made under sub rule 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.” 10.The questions that arise in this kind of application are whether there is an appeal in place, whether the application has been filed without undue delay, whether substantial loss would be suffered by the Applicant should the orders of stay of execution sought not be granted and if there is any security offered for the due performance of the decree. 11.There is an appeal properly before the Court. The record shows that there is a Memorandum of Appeal dated 26th April, 2026. I am therefore satisfied that the Applicant has lodged an appeal and that there is a competent appeal upon which the present application for stay of execution is anchored. 12.Next is whether the application was filed without unreasonable delay. Judgment was delivered on 8th April 2026, while the present application is dated 16th April, 2026, approximately one week after delivery of the judgment. I am satisfied the application was filed without delay. 13.On the question whether the Applicant has demonstrated that it stands to suffer substantial loss if the order of stay is not granted, the Applicant contends that the Respondent's financial status is unknown and that his ability to refund the decretal sum in the event the appeal succeeds is doubtful. It is the Applicant's apprehension that payment of the decretal sum before the determination of the appeal may result in the Appellant suffering substantial loss as there are no prospects for recovery of the same. Further, that the Respondent is facing criminal charges in Eldoret CMCR No 1955 of 2022 in which he has been charged with stealing by servant, forgery and fraudulent accounting and has been placed on his defence. 14.The law is settled that substantial loss is the cornerstone of an application for stay of execution pending appeal. While the legal burden rests upon an applicant to establish substantial loss, the Court of Appeal in National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another [2006] eKLR held that where an Applicant expresses a reasonable apprehension that a Respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his or her financial capability. 15.The Respondent in his replying affidavit does not controvert the Applicant's assertion regarding his ability to refund the decretal sum in the event the appeal succeeds. The Applicant's apprehension therefore remains unchallenged and therefore valid. 16.In the circumstances, and bearing in mind that the purpose of an order for stay is to preserve the subject matter of the appeal, I am satisfied that the Applicant has demonstrated that it is likely to suffer substantial loss if execution proceeds before the appeal is heard and determined. 17.For the foregoing reasons, I find that the Applicant has met the legal threshold for the grant of an order of stay of execution pending appeal. Accordingly, the application dated 16th April 2026 is hereby allowed in terms of prayer (3) thereof, on condition that the Applicant shall deposit the decretal sum in Court or in a joint interest earning account in the names of counsel for the parties within thirty (30) days from the date hereof. 18.Failure to comply with the above condition shall automatically render the stay orders vacated and the Respondent shall be at liberty to execute. 19.The costs of this application shall abide the outcome of the appeal. DATED, DELIVERED AND SIGNED ON THIS 2ND DAY OF JULY, 2026.M. ONYANGOJUDGE