https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1397

Muli v Kabriya t/a Varniraj Hardware and Tools Ltd (Appeal E162 of 2025) [2026] KEELRC 1397 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1397 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E162 of 2025 JW Keli, J May 15, 2026 Between Daniel Mulinge Muli Appellant and Nitin Kabriya t/a Varniraj Hardware and Tools Limited Respondent (Being an Appeal from the Judgment and Decree of the Hon. M. Nanzushi (SPM) delivered on 14th May 2025 in Mavoko MCELRC E221 of 2024) Ruling 1.The applicant, dissatisfied with the Court’s judgment on appeal delivered on 10th December 2025, filed an application by way of Notice of Motion dated 13th January 2026 brought under Order 42 Rule 6, Order 9 Rule 9 Civil Procedure Rules, Section 12 of the Employment and Labour Relations Court Act and all enabling provisions and powers of the Court for orders: -a.That this Application be certified urgent and heard ex-parte in the first instance.b.That the firm of Joyce Wachira & Company Advocates be granted leave to come on record in place and stead of Wachira Alex & Associates Advocates for the Respondent.c.That this Honorable Court be pleased to stay the execution of the Judgement and Orders of this Honorable Court issued on 10th December 2025 pending the hearing and determination of the Application inter-partes.d.That this Honorable Court be pleased to stay the execution of the Judgement and Orders of this Honorable Court issued on 10th December 2025 pending the hearing and determination of the Intended Appeal.e.That Costs of this application be provided for. Grounds of the application 2.That on 10th December 2025 this Honorable Court delivered a Judgement and Orders wherein the Claimant was awarded a sum of Kshs. 593,447. 3.That the Applicant aggrieved with the said Judgement and Orders, did file a Notice of Appeal on 22nd December 2025 and immediately applied for copies of the proceedings to pave way for filing of the substantive appeal. 4.That the intended Appeal against the Judgement and Orders of this Honorable Court raises several arguable and important issues of law and is not frivolous. 5.That since Judgement had already been pronounced on the matter, it is necessary that leave be granted to the firm of Joyce Wachira Advocates to be placed on record in place and stead of the current firm of Advocates, Wachira Alex & Associates Advocates 6.That there exist real fear and apprehension that the Claimant would proceed and initiate execution proceedings as against the Respondent/Applicant herein at any time. 7.That the intended Appeal would be rendered nugatory if the Claimant proceeds to execute the resultant Decree before filing, hearing and determination of the intended appeal. 8.That the Applicant is apprehensive that the if the Claimant receives the decretal sums subject of intended appeal (in enforcement of the decree), the Applicant will be unable to recover any sums back should it be successful in its Appeal and hence stands to suffer substantial loss. 9.That the Respondent is willing to abide by the orders as regards security for the due performance of the Decree as may ultimately be binding upon them. 10.That we pray that the application be allowed as prayed in the interest of justice and fairness. 11.The applicant filed their supporting affidavit sworn on the 13th January 2026 by Nitin Kabriya who annexed as their exhibits marked 'NK-1' is a copy of the Judgement and Orders of the Court and, NK-2' are copies of the Notice of Appeal, a copy of a Letter Requesting for Proceedings and ,'NK-3' is a copy of the draft Memorandum of Appeal. Response 12.The Respondent opposed the application vide grounds of opposition dated 17th January 2026 as follows-a.That the Honourable Court is factus officio and thus the application offends the principle of finality of determination of disputes.b.That the Honourable Court lacks jurisdiction to hear and grant an order of stay of execution of judgment delivered on 10th December 2025 under the invoked provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.c.That the jurisdiction of the Honourable Court has not been properly invoked.d.That provisions of Civil Procedure Rules, 2010 are not applicable in a labour dispute, and thus the applicant has invoked wrong provisions of the law.e.That the applicant has also not met the legal threshold or known conditions for granting an order of stay of execution of judgment pending hearing of an intended appeal.f.That the applicant has not demonstrated an arguable appeal pending before the Court of Appeal which will be rendered nugatory if a stay of execution is not granted.g.That there is no valid or competent notice of appeal that has been lodged by the applicant.h.That the applicant’s notice of appeal dated 22nd December 2025 was lodged on 24th December 2025 outside the prescribed fourteen (14) days statutory window thus rendering the said notice of appeal fatally defective, incompetent and a non-starter in law.i.That the Court of Appeal is the appropriate forum to entertain a prayer for stay of execution of the judgment delivered on 10th December 2025.j.That the application is fatally defective, frivolous, vexatious and incompetent for want of a competent and valid notice of appeal.k.That the applicant has not offered to deposit the entire decretal amount in Court or interest earning joint account opened in the names of the parties’ advocates. Decision 13.The application was canvassed by way of written submissions. The parties complied. 14.The issues for the court in the application were as follows-a.Whether the court had jurisdiction to handle the applicationb.Whether leave should be granted in favour of Joyce Wachira & Company Advocates to come on record in place of Wachira Alex & Associates.c.Whether the application for stay of execution was merited Whether the court had jurisdiction to handle the application 15.The applicant sought an order of stay of execution pending pursuit of intended appeal at the Court of Appeal. The Respondent contended that the court lacks jurisdiction and submitted as follows- Firstly, we submit that this Honourable Court lacks jurisdiction to grant an order of stay of execution of judgment delivered on 10th December 2025 under the cited provisions of Order 42 rule 6 of the Civil Procedure Rule, 2010. Therefore, the jurisdiction of this Honourable Court has not been properly invoked by the applicant and thus this Honourable Court lacks jurisdiction to grant a relief of an order of stay of execution. Further, we submit that provisions of Order 42 rule 6 of the Civil Procedure Rule, 2010 are only applicable when an appeal is pending before this Honourable Court and not when the intended appeal is to the Court of Appeal. Secondly, we submit that this Honourable Court is factus officio and thus cannot entertain this application after judgment. Therefore, the application offends the principle of finality of proceedings. Therefore, we submit that the Court of Appeal is the appropriate forum to handle such an appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2022. Further, we submit that no statutory provisions/authority exist which would support this Honourable Court granting orders of stay of execution of its own judgment and decree where there in an intended appeal to the Court of Appeal. We place reliance in the case of Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others [2013] KECA 543 (KLR); where the Court of Appeal had to say on stay of execution pending hearing and determination of an intended appeal:- “On the issue of whether this Court has jurisdiction to stay execution of its orders or stay any proceedings after the final delivery of its judgment and pending the hearing and determination of an intended appeal to the Supreme Court, we are of the view that once this Court has pronounced the final judgment, it is functus officio and must down its tools. In the absence of statutory authority, the principle of functus officio prevents this Court from re-opening a case where a final decision and judgment has been made. We bear in mind that in the new constitutional dispensation, most cases will end at the Court of Appeal and it is inadvisable for this Court to be able to issue stay orders after delivery of its judgment. We remind ourselves that the principle of functus officio is grounded on public policy which favours finality of proceedings. If a court is permitted to continually revisit or reconsider final orders simply because a party intends to appeal to the Supreme Court or the Court may change its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding. The structure of the Kenyan courts is that there must be finality of proceedings at the Court of Appeal in those cases where certification to the Supreme Court has not been granted. Allowing this Court to issue stay orders after judgment would be detrimental to the concept of finality in litigation within hierarchy and structure of the Kenyan courts. We take cognizance that when this Court has delivered judgment; all pertinent issues and points of law have been fully canvassed and considered. Upon delivery of judgment, the rights of the parties have been determined and it is a legal requirement that the decree emanating from the judgment should be executed. The submissions by counsel, evidence on record, points of law and relevant authorities all have been raised, re-examined, weighted, deliberated upon and judgment made. What new point of law can subsequently be raised in an interlocutory application for stay of execution that will make this Court change its mind after delivery of judgment and order stay of execution? If there are new points of law or circumstances that arise after judgment, this Court is functus officio and the justiciable forum to consider the merits or otherwise of these new circumstances must shift from this Court to the Supreme Court...” We submit that the applicant has raised points of law for consideration in the application/grounds, which issues can only be canvassed before the Court of Appeal for consideration whether the applicant has met the conditions/principles under rule 5(2)(b) of the Court of Appeal Rules, 2012. Therefore, this Honourable Court is factus officio and ought to down its tools. Moreover, this Honourable Court is not the appropriate forum to determine whether the applicant has an arguable appeal which will be rendered nugatory if an order for stay of execution of the judgment is declined. 16.The applicant in response to the issue of jurisdiction submitted as follows- The objection has raised is incompetent for lack of substance, Section 73(2) of the Employment and Labour relation court rules give this court jurisdiction to hear and grant an order of stay of execution of judgment It states as follows 73. Execution and warrants (1) …. (2) Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules. The jurisdiction of this Honourable court is properly invoked. The judgement was delivered on 10th December 2025 and the applicant’s notice of appeal dated 22nd December 2025 was lodged on 24th December 2025 which is within the prescribed fourteen (14) days statutory window. The provisions of order 50 rule 4 of the civil procedure rules provides for when time does not run to include a period from 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. Decision on jurisdiction 17.Rule 73 of the Court procedural Rules(2024) states-‘73. Execution and warrants(1)The Registrar shall issue an order in execution of a decree.(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’ 18.The relevant Civil Procedure Rule is order 42 rule 6 to wit – ‘6. Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (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.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.’ The instant application for stay of execution was filed upon delivery of the Judgment by the court on the 10th December 2025. That court thus has jurisdiction to consider the application. I find the decision cited by the respondent of the Court of Appeal of Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others [2013] KECA 543 (KLR), concerned the jurisdiction of the said court and not this court. On the notice of appeal, I am persuaded the Notice of Appeal was filed within timeline of 14 days taking into account the holiday in the period when days were not running. Order 50 Rule 4 of the civil procedure rules provides for when time does not run to include a period from 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. ‘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:’ Whether leave should be granted in favour of Joyce Wachira & Company Advocates to come on record in place of Wachira Alex & Associates. 19.The court found no objection to the leave sought. The prayer sought was in compliance with Order 9 Rule 9 of the Civil Procedure Act to wit- ‘9. Change to be effected by order of court or consent of parties [Order 9, rule 9]1.When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be’’. The leave is granted in favour of Joyce Wachira & Company Advocates to come on record in place of Wachira Alex & Associate post the judgment On whether the application for stay of execution is merited. 20.Rule 73 of the Employment and Labour Relations Court Rules of 2024 provides as follows- ‘(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’’ The relevant rule under the Civil Procedure Rules is Order 42 Rule 6 to wit- ‘6. Stay in case of appeal [Order 42, rule 6] (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (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.’’ 21.The court established that there was no unreasonable delay in filing the application. The impugned decision was dated 10th December 2025, and the Notice of Appeal was filed on the 14th January 2026. The instant application was filed 14th November 2026 of which the court found was brought without inordinate delay. 22.On substantial loss, this being a money decree, the loss is disclosed as the respondent did not demonstrate capacity to repay the money in the event of a successful appeal by filing an affidavit of means. 23.On the issue of security, which is a mandatory condition under section 42(6) of the Civil Procedure Rules. The applicant stated it was willing to abide by orders regarding security for the performance of the Decree as may ultimately be binding upon it. 24.The court then finds that the application is merited and meets the conditions for the grant of a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules. The court is guided by decision in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal gave guidance on how a Court should exercise discretion in an application for a stay of execution, that: -‘If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” The application is merited, the applicant having complied with the provisions of Order 42 Rule 6 of the Civil Procedure Rules and, in order to prevent the appeal, if successful, from being nugatory. 25.The Application dated 13th January 2026 is allowed on as follows:a.Leave granted in favour of Joyce Wachira & Company Advocates to come on record in place of Wachira Alex & Associates.b.An order is issued of Stay of execution of the judgment dated 10th December 2025 and consequential order pending hearing and determination of the intended appeal, on condition that the decretal sum is deposited in court within 30 days of judgment; in default, the order lapses.c.Costs of the application to the respondent. 26.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant: LumwachiRespondent: Njuguna