https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1545

Kenya Institute of Management v Irungu (Appeal 055 of 2026) [2026] KEELRC 1545 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1545 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal 055 of 2026 K Ocharo, J May 28, 2026 Between Kenya Institute Of Management Appellant and John Irungu Respondent (Being an appeal against the judgment of Hon. J.B Kalo – CM in MC-ELRC E002 of 2024 delivered on 13th March 2026 at Mombasa) Ruling 1.In the Notice of Motion application dated 24th April 2026 expressed to be under Order 42 Rule 6 of Civil Procedure Rules and Article 159[2][2] [d] of the Constitution of Kenya,2010, the Applicant seeks for a stay of execution of the decree in MCELRC No. E002 of 2024, pending the hearing and determination of the appeal herein. The application is anchored on the grounds set out on the face thereof, and the supporting affidavit sworn by its Head of Shared Services, Raymond Mwangi. 2.The Applicant contends that it is apprehensive that the Respondent will execute the decree before the appeal can be heard and determined unless the order of stay pending appeal is granted. 3.It further asserts that it stands to suffer substantial loss if the execution stay of execution is not granted pending the hearing and determination of the appeal. 4.The Applicant undertakes to deposit 25% of the Judgment sum as security for costs, given that the Applicant is an institution that requires a steady cash flow to maintain smooth operations across its campuses. The Respondent would suffer no prejudice if the order sought is granted. 5.The Respondent opposes the application through his Reply affidavit, sworn on 30th April 2026. He contends that an order for stay pending appeal is only grantable where the applicant shows good cause. The Applicant does not deserve the stay order, as he has failed to demonstrate any good cause and that the appeal is arguable. 6.The Applicant hasn’t explained what the substantial loss that he is likely to suffer if the orders are not given is. 7.Should this Court decide to grant the order of stay, it should be conditional. The Applicant should deposit the entire decretal sum of KShs. 2, 418, 000 in court as security pending appeal. 8.The Applicant filed a further affidavit in response to the averments made by the Respondent in his affidavit. It is stated that, following the COVID-19 pandemic, the Applicant has had a plethora of cases filed against it, some by people who were not its employees, fraudulently. 9.The Applicant has a constitutional right to appeal and should not be penalised for its financial constraints. 10.The decretal amount is substantial. The Respondent would suffer irreparable loss if the order to stay execution were not granted. Analysis and Determination 11.I have carefully considered the application, the grounds upon which it is premised, the affidavit in support thereof, the further affidavit, the Respondent’s replying affidavit, and the parties’ respective submissions. A sole issue for determination is whether the applicant’s application meets the legal threshold for the grant of a stay of execution pending appeal. 12.The discretion to grant an order of stay of execution pending appeal is not an unfettered discretion. It is a judicial discretion that is circumscribed by the conditions expressly set out under Order 42 Rule 6 of the Civil Procedure Rules. Consequently, a court cannot grant a stay on the basis of sympathy, convenience or mere apprehension by an applicant. The discretion must be exercised within the statutory parameters and upon satisfaction of the conditions prescribed by the law. 13.The rationale behind the fettered discretion is clear. On the one hand stands a successful litigant who has obtained a lawful judgment and is entitled to enjoy the fruits thereof without unreasonable delay. On the other hand, stands an appellant who fears that, unless stay is granted, the intended appeal may be rendered nugatory. The court is therefore called upon to carefully balance these competing rights and interests, ensuring that neither party suffers undue prejudice. 14.In striking the balance, the court must be satisfied that the application has been brought without unreasonable delay, that the applicant is likely to suffer substantial loss if stay is declined, and that the appropriate security for the due performance of the decree has been offered. The requirements are not ornamental; they are substantive safeguards designed to ensure that the remedy is granted only where justice genuinely demands it. 15.I have carefully considered the Appellant’s grounds set out on the face of the application, the supporting affidavit and the further affidavit, and note that, as regards substantial loss, all that is stated is that the Appellant would suffer substantial loss if the orders aren’t given. What substantial loss it is not brought out at all. The fact that the decretal sum is huge does not, in itself, constitute substantial loss. The Appellant has failed to satisfy the condition, demonstrating that if the stay order is not granted, it would suffer substantial loss. 16.The conditions set out in Order 42 Rule 6 are so set out in a conjunctive manner. Failure to satisfy one condition results in rejection of the application for a stay of execution. The Applicant’s application must fail, therefore. 17.In the upshot, I find the Applicant’s application lacking in merit. It is hereby dismissed. READ, SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE