https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1663

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E322 OF 2025** **MUSAU KAVENGELI APPELLANT** *VERSUS* **BIODEAL LABORATORIES LIMITED RESPONDENT** **RULING** The respondent, Biodeal Laboratories Limited, filed an application dated 7 May 2026, under the provisions of Rule 68(3) of the Employment and Labour Relations Court (Procedure) Rules, Order 26, Rules 1, 5, and 6 of the Civil Procedure Rules, seeking Orders: 1. *Spent.* 2. *The appellant is ordered to deposit security for costs in the sum of Ksh. 138,225.53.* 3. *The said security shall be deposited in a joint interest-earning account within 30 days pending hearing and determination for the instant appeal.* 4. *In default of compliance with Order (2) above, the appeal herein shall be dismissed and/or struck out with costs to the respondent.* 5. *The costs of this application should be provided for.* The application is supported by Mital Shah, the respondent's director, who avers that the appellant has approached the court with unclean hands, having disobeyed the lower court orders in Nairobi MCELRC No. E543 of 2024 for failure to pay Ksh. 138,225.53 in favour of the respondent. The appellant filed this appeal and has since been unreachable, thereby frustrating any enforcement process. Mital avers that the auctioneers are unable to reach or trace the appellant to execute the court orders; he has no known fixed place of residence, and unless the orders sought are granted, there will be injustice to the respondent. Pending the hearing of the appeal, the appellant should be ordered to deposit security herein. In reply, the appellant filed his Replying Affidavit and avers that he filed his appeal on 19 September 2025 against the trial court judgment delivered on 22 August 2025. The respondent's application is intended to delay the hearing of his appeal, and his advocates are in the process of obtaining the trial court's typed proceedings to file the Record of Appeal. The appeal has been mentioned 5 times to confirm compliance in the respondent's presence. There was no indication of the need for a security deposit as herein done. There is no proof of disobedience to the trial court's orders as alleged. Security for costs under Order 26 rule 1 is granted only at the court's discretion where the court deems a suit frivolous and vexatious, which is not the case in this appeal. The appellant avers that the respondent has not made a case that he is unable to settle the due costs if the appeal is addressed. He worked for the respondent for 22 years and is well known to them. Upon appeal, the respondent will have a chance to tax the costs due. Such a claim for costs should not impede the right to access justice and the hearing of the appeal. The parties attended and made oral submissions on the application. These are analysed, and the sole issue for determination is whether the court should direct the appellant to deposit security in the amount of Ksh. 138,225.53 pending the hearing and determination of the appeal. **Determination** As submitted by the respondent as the applicant, under Rule 68(3) of the Employment and Labour Relations Court (Procedure) Rules, the court may direct the deposit of security where it finds that the suit may be defeated or frustrated unless such condition is met. ***3) Where it is shown that the satisfaction of a relief as may be granted in a pending suit may be defeated or frustrated, the Court may, upon application, make an order imposing conditions including deposit of security for due satisfaction of the relief if the applicant is successful upon final determination of the suit.*** Thus, the court will order a party to deposit security for the due performance of the judgment where it is demonstrated that the relief sought may be defeated or frustrated if such a condition is not imposed. The respondent’s case is that the trial court delivered judgment on 22 August 2025, dismissing the appellant's claim with costs. Since filing the appeal, the respondent has sought to enforce the judgment orders against him without success. Efforts to trace him or his residence have not been successful. The respondent thus submitted that the appellant filed the appeal with unclean hands. He should be ordered to deposit the security pending the hearing of the appeal. To begin with, the appellant does not deny that the appeal relates to a judgment of the trial court delivered on 22 August 2025. The matter has been mentioned 5 times before the Deputy Registrar to confirm compliance. This is not done. Additionally, under Rule 12 and 15 of the Employment Labour Relations Court (Procedure) Rules, upon filing the Appeal, the appellant should also file their Record of Appeal. Where such a Record of Appeal is not filed together with the Memorandum of Appeal, this should be filed within 60 days from the date the subject judgment was delivered. From 22 August 2025, the time to file the Record of Appeal has lapsed. The appellant has not invoked the applicable procedures to address this lapse. Furthermore, despite the matter being mentioned 5 times by the Deputy Registrar, the appellant has not taken any action whatsoever to address the lapse and the failure to file the Record of Appeal. The respondent, too, instead of moving the court to have the appeal dismissed, has opted to seek a security deposit. The right to have a security deposited where it is demonstrated that the pending suit may be defeated or frustrated for want of a Record of Appeal stands correct. **Accordingly, the respondent's application has merit. The respondent shall deposit the sum of Ksh. 138,225.53 in court within the next 14 days lapsing on 3 July 2026. Mention on 6 July 2026 to confirm compliance and for the appellant to show cause why this appeal should not be dismissed for want of a Record of Appeal. The costs of this application are awarded to the respondent.** **Delivered in open court at Nairobi, this 18th day of June 2026.** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Nelson Kemboi and Catherine Makau ……………………………………………… and ………………….…………………………...