https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1622

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT ELDORET** **APPEAL NO. E067 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **KENYA SEED COMPANY LIMITED ………………………APPELLANT** **VERSUS** **PURITY JEPKOGEI KIBII……….……..………………. RESPONDENT** **RULING** 1. The application before me for determination is dated 30th January, 2025 and has been brought by the Appellant/Applicant under the provisions of section 3 of the Employment and Labour Relations Court Act, Rile 21, 44,45, 47 and 73(2) of Employment and Labour Relations Court (Procedure Rules, 2024, Order 42 Rule 6 of the Civil procedure Rules and sections 1A,1B AND 3A AND 63(e) of the Civil Procedure Rules. 2. The Applicant seeks orders that: 3. Spent 4. That there be interim stay of execution of the trial court judgment dated and delivered on 30th September 2025 and the resultant decree pending the interparties hearing of this application. 5. There be stay of execution of the trial court judgment dated and delivered on 30th September 2025 and the resultant decree pending the hearing and determination of this appeal. 6. The costs of this application to abide the outcome of the appeal. 7. The application is supported by the affidavit of Tonny Ochieng Onyango, the Applicant’s Human Resource Manager sworn on 30th October 2025. 8. The grounds upon which the application is made are contained at the foot of the application as reiterated and expounded in the supporting affidavit as follows: 9. The trial court delivered the impugned judgment on 30th September 2025 in favour of the Respondent as against the Appellant/Applicant. 10. The Applicant is aggrieved by the said judgment and has preferred this appeal 11. This appeal is arguable and has high chances of success., 12. Should the Respondent be allowed to proceed with the execution of the impugned Judgment and resultant decree this appeal risks being rendered nugatory. 13. The Applicant is ready and willing to abide by any reasonable conditions of stay of execution that may be ordered by this court. 14. The Applicant risks being locked out of exercising her right of appeal with no unreasonable hindrance should the Respondent be allowed to proceed with execution of the impugned Judgment regardless of the pendency of this appeal. 15. No prejudice will be occasioned on the Respondent by the grant of the reliefs sought. 16. It is in the best interest of justice and fairness that the interim reliefs sought are granted to maintain the substratum of this appeal. 17. The financial status of the Respondent and her ability to repay the decretal sum upon receipt in the event this appeal is successful is questionable. 18. The Respondent is not financially able to repay the decretal sum and the costs of this appeal in the event this appeal is meritorious after the full payment of the decretal amount pending the determination of this appeal. 19. At the time of preparing this ruling, no replying affidavit, grounds of opposition or written submissions by the Respondent were available on the Court's CTS platform or in the physical court file. 20. I have examined the application and as well as the Applicant’s submissions dated 8th December 2025. 21. **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.”*** 1. The questions that arise in this kind of application are whether there is an appeal in place, the application has been made without delay and whether that substantial loss would result if the order of stay sought was not granted and if there is any security offered for the due performance of the decree. 2. The first issue for determination is whether there is an appeal properly before the Court. The record shows that the impugned judgment was delivered on 30th September 2025. The Memorandum of Appeal was filed on 30th October 2025 contemporaneously with the present application. 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. 3. The next issue is whether the application was filed without unreasonable delay. Judgment was delivered on 30th September 2025, while both the Memorandum of Appeal and the present application were filed on 30th October 2025, a period of approximately one month after delivery of the judgment. 4. The third issue for determination is 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 her 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 render the appeal nugatory should recovery subsequently prove impossible. 5. 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. 6. The Respondent neither filed a replying affidavit nor submissions to controvert the Applicant's assertion regarding her ability to refund the decretal sum in the event the appeal succeeds. The Applicant's apprehension therefore remains unchallenged. 7. 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. 8. Under Order 42 rule 6(2) of Civil Procedure Rules, the Applicant is required to provide “*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.”* 9. For the foregoing reasons, I am satisfied that the Applicant has met the legal threshold for the grant of an order of stay of execution pending appeal. Accordingly, the application dated **30th October 2025** is hereby **allowed** in terms of prayer (3) thereof, on condition that the Applicant shall provide security by way of deposit of **one-half (50%) of the decretal sum** in Court within **thirty (30) days** from the date hereof in a joint interest earning account in the names of counsel for the parties. 10. Failure to comply with the above condition shall automatically render the stay orders vacated and the Respondent shall be at liberty to execute. 11. The costs of this application shall be borne by the Applicant. **DATED, DELIVERED AND SIGNED** **ON THIS 12TH DAY OF JUNE 2026.** **M. ONYANGO** **JUDGE**