https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2150

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E052 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) NAKURU PETCARE SURGERY LIMITED……….…...… APPELLANT VERSUS ALFRED IMBWAKA YAKHANA……………...……... RESPONDENT RULING 1. The Respondent/Applicant filed a Notice of Motion dated 10th March 2026 under Certificate of urgency seeking the following orders that: a.Spent b.Pending the hearing and determination of this application, the Honourable Court be pleased to stay further proceedings in this matter. c. The Honourable Court be pleased to grant the Respondent/Applicant leave to appeal to the Court of Appeal against the ruling of Hon. Lady Justice Anna Nguibini Mwaure delivered in this matter on 25th February, 2026. ELRC APPEAL NO. E052 OF 2025 RULING 1 | P A G E d.Costs of this application be provided for. 2. The application is brought under Article 50(1) of the Constitution, Order 43 Rule 1,2 & 3 of the Civil Procedure Rules, Rule 41(1) of the Court of Appeal Rules, 2022 and all other enabling provisions of the law. Respondent/Applicant’s supporting affidavit 3. The application is supported by the affidavit sworn by Respondent/Appellant dated even date as the application. 4. The Respondent/Applicant avers that he is challenging the decision of Hon. B. Ochieng in Nakuru CM ELRC E310 of 2021. 5. The Respondent/Applicant avers that the court had granted a stay of execution on 25th February 2026, requiring both parties to deposit 50% of the decretal sum. 6. The Respondent/Applicant avers that he expressed dissatisfaction with this condition, stating he never sought a stay of execution, has not received any payment, and lacks the financial capacity to comply. ELRC APPEAL NO. E052 OF 2025 RULING 2 | P A G E 7. The Respondent/Applicant avers that he seeks leave to appeal the ruling, asserting that his application was filed within 14 days, that his appeal is arguable with high prospects of success, and that granting leave would serve the interests of justice. Appellant/Respondent’s grounds of opposition 8. The Appellant/Respondent opposed the application vide a grounds of opposition dated 19th June 2026 on the following grounds: 1.The said application is bad in law, does not meet the settled principles for grant of leave to appeal, as such it is fatal, inept, incompetent, misconceived and an abuse of court process and ought to be dismissed with cost. 2.The application and the attached Draft Memorandum of Appeal has not demonstrated an arguable appeal which merits serious judicial consideration by the Court of Appeal which is a fundamental pre-requisite for a court to exercise discretion and grant leave to appeal in favour of the Applicant. 3.This court exercised its discretion judiciously in its ruling on 25th February, 2026, granting stay of execution of Nakuru CMELRC E310 of 2021 were legally sound ELRC APPEAL NO. E052 OF 2025 RULING 3 | P A G E and consistent with the existing jurisprudence on the grant of stay of execution of judgment pending appeal pursuant to Order 42 Rule 6 of the Civil Procedure Rules, 2022. 4.No error of law has been demonstrated by the Applicant which compel, allows or justifies this Honourable Court to exercise its discretion in his favour and grant the orders sought; thus the Application in is devoid of merit, vexatious, irritating and ought to be dismissed with costs. 9. Parties canvassed the application by way of written submissions. Respondent/Applicant’s submissions 10. The Respondent/Applicant relied on Order 43 of the Civil Procedure Rules and Rule 41(1) of the Court of Appeal Rules, which stipulate that such applications must be made within 14 days of the impugned decision. The Respondent/Applicant contended that appeals against orders under Order 42 Rule 6 of the Civil Procedure Rules do not lie as of right and therefore require leave, citing the case ofCapital D Elegance Ltd v Masinde [2022] ELRC APPEAL NO. E052 OF 2025 RULING 4 | P A G E KEELRC 1676 (KLR), where Nderitu J held that leave is necessary for such appeals. 11. The Respondent/Applicant further relied on Order 43(2) of the Civil Procedure Rules, which empowers the court to grant leave to any dissatisfied party to appeal against its orders. The Respondent/Applicant maintains that his application is made in good faith, supported by a draft memorandum of appeal, and prays that the court exercises its discretion to allow the application and grant leave to appeal in the interest of justice. Appellant/Respondent’s submissions 12. The Appellant/Respondent relied on section 75 of the Civil Procedure Act, and Order 43 Rule 2 of the Civil Procedure Rules are prescriptive that an order issued by a court under Order 42 Rule 6 of the Civil Procedure Rules is not one from which an automatic right of appeal arises. 13. The Appellant/Applicant relied on the case of Bank of South Sudan v Government of South Sudan & Others [2026] KECA 823 (KLR), where the Court of Appeal held that: ELRC APPEAL NO. E052 OF 2025 RULING 5 | P A G E “The rationale for this legal requirement for leave to appeal against certain decision, as explained by the predecessor of this court in Rene Dol v Official Receiver of Uganda [1954] 21(1) EACA 116, is to restrict appeals from minor procedural questions or interlocutory matters which do not to the root of the litigation or determine finally the substantive rights of the parties or which can themselves be brought into question in an appeal from the final decision.” 14. In Sango Bay Estates Ltd v Dresdner Bank AG [1971] EA 17 where it held as follows that: “Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration but where….the order from which it is sought to appeal was made in the exercise of judicial discretion, a rather stronger case will have to be made out.” 15. The Appellant/Respondent argued that the Respondent/Applicant must clearly demonstrate an ELRC APPEAL NO. E052 OF 2025 RULING 6 | P A G E arguable appeal deserving of judicial consideration. In his supporting Affidavit dated 10th March 2026, he asserts that he has an arguable appeal and attaches a Draft Memorandum of Appeal outlining three grounds of dissatisfaction with the court’s order requiring both parties to deposit half the decretal sum in Nakuru CMELRC E310 of 2021. 16. The Appellant/Respondent submitted that the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules is purely discretionary, exercised as the court deems fit, citing the authority of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) to reinforce that such discretion must be applied judiciously and in the interest of justice. 17. The Appellant/Respondent argued that the ruling delivered on 25th February 2026, which required both parties to deposit half of the decretal sum, was a proper exercise of judicial discretion and therefore not open to appeal. The Respondent maintains that the orders were discretionary and not arguable, meaning the Applicant’s intended appeal lacks merit and realistic prospects of success. Replying on the case of Kenya Shell Ltd v Kobil Petroleum ELRC APPEAL NO. E052 OF 2025 RULING 7 | P A G E Limited [2006] KECA 382 (KLR), the Respondent emphasizes that leave to appeal is granted only where an applicant demonstrates arguable grounds. The Respondent further relied on Beluga Ltd & another v Safaricom PLC; Huawei Technologies (Kenya) Co. Ltd [2023] KEHC 22039 (KLR) where an application for leave to appeal was dismissed on grounds that the Applicant had not demonstrated having an arguable appeal meeting serious judicial consideration by the Court of Appeal. 18. On costs, the Appellant/Respondent made reference to section 27 of the Civil Procedure Act and the Supreme Court’s decision in Jasbir Singh Rai & others v Tarlochan Singh Rai & others [2014] eKLR, affirming that costs follow the event unless exceptional circumstances justify otherwise. 19. In conclusion, the Appellant/Respondent submitted that the application is unmerited and should be dismissed with costs. Analysis and determination 20. The court has considered the application, supporting affidavit, grounds of opposition together with the rival submissions by both counsel and applicable law. ELRC APPEAL NO. E052 OF 2025 RULING 8 | P A G E The issue for determination is whether the application to review the court’s ruling is merited. 21. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules provides as follows: “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 it may 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. 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 ELRC APPEAL NO. E052 OF 2025 RULING 9 | P A G E 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.” 22. In Butt v Rent Restriction Tribunal(supra) the Court of Appeal held that t the power to grant stay is discretionary and should be exercised in a manner that prevents an appeal or application from being rendered nugatory. 23. In Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR) the court stated as follows: “I’m alive to the fact that grant of stay being a discretionary order the court is expected to balance out the interests of the successful litigant and the applicants’ unfettered right to file an appeal to fully ventilate their grievances. This means that the court has discretion to consider other factors such as good cause and in the interest of justice why stay should be granted. ELRC APPEAL NO. E052 OF 2025 RULING 10 | P A G E Whether the appeal has merit or not is not a matter for the jurisdiction of this court.” 24. In this instant appeal, the Respondent/Applicant contended that the court’s ruling of 25th February 2026, which granted a stay of execution and directed both parties to deposit 50% of the decretal sum, was unjust. He argues that he never sought a stay of execution, has not received any payment, and lacks the financial means to comply. He therefore seeks leave to appeal, asserting that his application was filed within the statutory 14-day period, that his appeal is arguable with high prospects of success, and that granting leave would serve the interests of justice. 25. Conversely, the Appellant/Respondent maintained that the application is bad in law, fails to meet the established principles for granting leave to appeal, and that the Draft Memorandum of Appeal does not disclose any arguable grounds warranting judicial consideration. The Appellant/Respondent further submitted that the court’s ruling of 25th February 2026 was a proper exercise of judicial discretion under Order 42 Rule 6 of the Civil Procedure Rules, ELRC APPEAL NO. E052 OF 2025 RULING 11 | P A G E 2022, consistent with prevailing jurisprudence. No error of law has been demonstrated to justify interference with that discretion. 26. The court is persuaded that the application was lodged within a reasonable time on 10th March 2026 following the ruling of 25th February 2026. It further observes that the Appellant/Respondent appears to be a person of limited means and was entitled to be heard on appeal, thereby raising an arguable appeal. In recognition of his constitutional right of appeal, and upon finding that the Respondent/Applicant has satisfied the threshold for the grant of stay on further proceedings in this matter the same are stayed as prayed. 27. The court having considered the application, submissions and case laws applicable allows the application as follows: a.This Honourable Court be pleased to stay further proceedings in this matter for 30 days from the date of delivering this ruling. b.During the 30 days, the Respondent/Applicant is granted leave to appeal to the Court of Appeal against the ELRC APPEAL NO. E052 OF 2025 RULING 12 | P A G E ruling of this Honourable Court delivered on 25th February 2026. c. Costs of the application will be in the cause. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 17th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of ELRC APPEAL NO. E052 OF 2025 RULING 13 | P A G E the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC APPEAL NO. E052 OF 2025 RULING 14 | P A G E