https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2039

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E019 OF 2026** *(Before Hon. Lady Justice Maureen Onyango)* **MANPOWER NETWORKS LIMITED …………..……. APPELLANT** **VERSUS** **MARTINE MAINA SUKURU ……….………….…… RESPONDENT** **RULING** * + - 1. The application before me for determination is dated 24th April, 2026 and has been brought by the Appellant/Applicant under the provisions of section 1A, 1B, 3A of the Civil procedure Act, Order 42 Rule 6; Order and Order 51 of the Civil Procedure Rules. The Appellant/Applicant seeks orders that: 1. THAT this Application be certified urgent and heard ex parte in the first instance. 2. THAT pending the hearing and final determination of the Application herein, the Honourable Court be pleased to order a stay of execution of the Judgment dated 6th February 2026 and delivered on 10th February 2026 and the resultant decree thereof. 3. THAT the Honourable Court be pleased to order a stay of execution of the Judgment dated 6th February 2026 and delivered on 10th February 2026 pending the hearing and final determination of the Applicant’s Appeal herein. 4. That the costs of this Application be borne by the Respondent. 5. The application is supported by the affidavit of LUCY MWANGI, a Director of the Applicant sworn on 24th April, 2026. 6. 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: 7. THAT the Appellant is Aggrieved by the Judgment and Decree, the Appellant has already filed a memorandum of appeal, with the same scheduled for Mention for Directions on 8th June 2026. 8. THAT the 30 days’ stay of execution issued by the trial court following the delivery of the Judgment dated 6th February 2026 has since expired. 9. THAT the Appellant is contesting both the evidence relied upon and the amount awarded in the Judgment dated 6th February 2026 hence the execution of the same would mean that our Appeal would be overtaken by events. 10. THAT the Applicant is willing to provide security in such terms as the court may direct, and undertakes to deposit half of the awarded Judgment interest earning accounts with the parties herein being joint signatories to the account, pending the hearing and determination of the Appeal. 11. THAT aggrieved by the Judgment and Decree, the Appellant filed a Notice of Appeal dated 17th February 2026 before the trial Court and wrote a letter requesting for certified copies of the proceedings, Judgment and Decree for purposes of Appeal. 12. THAT the Appellant has already filed a memorandum of appeal dated 25th February 2026. 13. THAT this application has been made without inordinate delay. 14. THAT the Applicant shall suffer substantial loss if the Respondent is allowed to proceed with execution because the Appellant is contesting both the evidence relied upon and the amount awarded in the Judgment dated 6th February 2026. 15. THAT the Applicant is willing to provide security in such terms as the court may direct and undertakes to deposit half of the awarded Judgment sum into an interest earning accounts within 60 days with the parties herein being joint signatories to the account, pending the hearing and determination of the Appeal. 16. THAT the Applicant's Appeal is not only arguable but has a high chance of success as per the attached draft memorandum of appeal. 17. THAT this Appeal shall be rendered nugatory and overtaken by events unless the Judgment and decree herein are stayed since the Judgment directed that the Appellant to pay the Respondent a total of Kshs.445,836/= for wrongful termination of employment. 18. THAT if this Application is not heard expeditiously and the Orders sought are not granted, the Applicant shall suffer a complete violation of his rights, especially the right of appeal. 19. The Respondent MARTINE MAINA SUKURUopposed the application through his replying affidavit sworn on 12th May, 2026 in which he deposes that the application is frivolous, vexatious, lacks merit and has been brought in bad faith, that the application is procedurally premature, fatally defective and a gross abuse of court process for the reason that the Applicant bypassed the jurisdiction of the trial court and moved this court directly without first seeking stay at the of execution from the court of first instance. 20. The Respondent deposes that he has a valid judgement from the trial court whose fruits he ought to be allowed to enjoy, that he has been out of employment since the unlawful termination and the judgement the Appellant seeks to stay was intended to mitigate his suffering. That further delay would cause him irreparable personal hardship, that the appeal is not brought in good faith and is designed to frustrate him. 21. He further deposes that the Appellant has not satisfied the conditions set out under Order 42 Rule 6(2) of the Civil Procedure Rules, that the Appellant has inordinately delayed the filing of the instant application without justifiable reason. 22. He deposes that the Appellant is a large organization and paying the decretal amount will not bankrupt it, that the Appellant has not demonstrated that it will suffer substantial loss should the orders sought not be granted and execution proceeds, that the Appellant’s appeal is not arguable and has no prospects for success, that the balance of convenience fall in favour of not granting the orders sought in the application. 23. The Respondent deposes that should the court be inclined to grant the orders of stay, the same should b conditional upon the Appellant depositing the entire decretal sum in an interest earning account in the joint names of the advocates. 24. The application was disposed of by way of written submissions which both parties filed and exchanged. The submissions of the Applicant are dated 12th June, 2026 while the submissions of the Respondent are dated 28th May, 2026. 25. I have considered the application and the submissions of the parties. The issues for determination is whether the Appellant meets the conditions for grant of the orders sought and what orders should issue. 26. **Order 42 Rule 6(2)** of the 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, 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. 2. There is an appeal properly before the Court. The record shows that there is a Memorandum of Appeal dated 25th February, 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. 3. Next is whether the application was filed without unreasonable delay. In the application it is stated that the judgment is dated 6th February, 2026 and was delivered on 10th February, 2026. The trial court granted 30 days stay of execution. The instant application is dated 24th April, 2026, just over 2 months after delivery of the judgment. There delay is not inordinate in the view of the court. 4. 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 it contests both the judgment and the evidence upon which the judgment is anchored. That if the orders are not granted the Appellant shall suffer a complete violation of its rights, especially the right of appeal and the right to own property. 5. The Appellant further states that the appeal would be rendered nugatory and overtaken by events should the stay orders not be granted. 6. I take note that the Respondent deposed in his replying affidavit that he is jobless. His ability to refund the decretal sum if paid to him in the event the appeal succeeds is doubtful. Recovery of the decretal sum from him may therefore present an uphill task, justifying not releasing the same to him. 7. In the circumstances, 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. The Respondent raised an issue about the Applicant coming to this court for orders of stay pending appeal without first seeking the said orders from the trial court. Both the trial court and the appellate court have concurrent jurisdiction to grant the orders. The Appellant cannot therefore be faulted for coming to this court as it is permitted to do so by the rules. 9. 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 April2026 is hereby allowedin terms of prayer (3) thereof, on condition that the Applicant shall deposit the decretal sum in a joint interest earning account in the names of counsel for the parties within thirty (30) days from the date hereof. 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 abide the outcome of the appeal. **DATED, DELIVERED AND SIGNED** **ON THIS 16TH DAY OF JULY, 2026.** **M. ONYANGO** **JUDGE**