https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1803

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NUMBER E221 OF 2025 KEFA ONSASE ONYANCHA...................................................................................PETITIONER VERSUS KENYA PIPELINE COMPANY (KPC) LTD ..........................................................RESPONDENT CORAM Before Lady Justice Jemimah Keli C/ A Otieno RULING 1. The respondent’s application dated 30th January 2026 (the application) sought to stay the execution of the judgment delivered in this matter on 17th December 2025. The application was supported by the affidavit of Nelson Nyaduwa sworn on 30th January 2026 and his further affidavit sworn on 18th February 2026. 2. The memorandum of appeal filed together with the application sets out the intended grounds of appeal which include:- a) The learned judge erred in holding that the petitioner’s rights under Articles 27, 28, 41, 47 and 236 (b) of the Constitution were violated. b) The learned judge erred in holding that the respondent was victimised, discriminated and retaliated against for being a whistle blower. c) The learned judge erred in holding that the Appellant imposed upon the respondent performance of duties of a higher grade without due compensation. Response 1. The respondent opposed the application for stay of execution vide his replying affidavit dated 9th February 2026 Hearing 1. The application was canvassed by the legal representative of the parties before me on 3rd June 2026. The applicant was represented by Ms. Songok, and the respondent, Mr Wanjala. The applicant stated that their appeal risked being nugatory if the order of stay was denied, and they would suffer substantial loss if they paid the decretal sum while still intending to appeal. They also mentioned that the respondent had no means to repay. Regarding security, the applicant stated that it would provide a bank guarantee. 2. Conversely, the respondent submitted that while the application sought to stay the entire judgment, the applicant had already complied with order no. 4 regarding the promotion. That orders nos. 1 to 3 were declaratory, and orders 5 and 6 had been fulfilled. The respondent argued that the court could not stay the declaratory order, as held in John B. Muya & 2 others v Elkana Mukundi Gatimu & another [2015] KECA 384 (KLR), where the Court stated: “At this juncture we have not been called upon to set aside the orders of Kimondo, J but to grant an order to stay them. The question that we must ask ourselves is, what is there to stay in a judgment that has made declaratory orders? Suffice to state that we have no power to reverse the orders at this stage. They can only be set aside after hearing the appeal. We agree with counsel for the respondents that there is indeed nothing to stay at this stage. It would have been otherwise if the applicant sought stay of execution of specific acts towards enforcement of the judgment such as stay of cancellation of returns and stay of cancellation of the allotment of shares pending appeal. We therefore find that we have no power at this stage to grant an order for stay of execution in the terms sought.” The respondent admitted that Order 7, which awarded Kshs. 3 Million, was permissible. The respondent also submitted that the issue of substantial loss related to the Initial Public Offering (IPO), which was successfully completed. The bank guarantee had not been submitted before the court. It was contended that the stay should be granted, and the money deposited into a joint interest-earning account. 3. In response, the applicant argued that it was incorrect to say they only sought to stay order no. 7; they intended to stay the entire judgment. These declarations have previously been stayed. They stated that the promotion referred to in their supporting affidavit was through assessment and a successful interview, not based on the judgment. Although it is true that, at the time of filing the application, the IPO was the most urgent issue, the award of Ksh. 3 million still represented a significant loss. Regarding the bank guarantee, it is a commercial instrument, and therefore it was unrealistic to expect it to be issued in advance. They relied on the decision of the Court of Appeal in Gitahi & another v Warugongo [1988] KECA 123 (KLR), where a bank guarantee was deemed valid security. DECISION 1. The court (Justice Byram Ongaya, as he then was) delivered judgment dated 17th December 2025 in this matter, of which the Decree is as summarised by the respondent as follows- a) Orders 1, 2,3 declaring that my rights had been infringed against the KPC Whistle Blowing Policy and numerous provisions of the law; b) Order No.4, a directive that I should be promoted to Job Group KPC 7,6 or such other job Group before 01 July 2026; c) Order No. 5, directing the Applicant herein (KPC) to put in place measures to protect me in line with the Whistleblowing policy; d) Order No 6 to protect me from being unfairly treated or interviewed by managers who have a perceived bias against me; e) Order 7, an award of KES. 3,000,000. 1. The applicant seeks a stay of execution of the judgment pending the hearing and determination of the intended appeal. The notice of appeal was filed on the 30th January 2026. The application was filed on the same date. The application is opposed on the grounds of partial performance of the judgment and lack of security, which the applicant has offered to provide in the form of a bank guarantee, which is contested. 2. 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.’’ 1. The court established that there was no unreasonable delay in filing the application. The impugned decision was dated 17th December 2025, and the Notice of Appeal was filed on 30th January 2026. The current application was also filed on 30th January 2026, which the court found to have been made without inordinate delay. 2. Regarding substantial loss, as this is a monetary decree, the loss is shown because the respondent did not demonstrate the capacity to repay the money (Order No. 7 of the Decree, Kshs. 3 Million awarded) in the event of a successful appeal by filing an affidavit of means. The court upheld the decision of the Court of Appeal in Swahili Beach Resort Limited v Osewe [2024] KECA 1312 (KLR), where the Court of Appeal stated: “We need to point out, though, that it behaves the respondent to discharge the burden of proof that, if the decretal amount is released to him, he will be able to refund it in the event the appeal succeeds. We need not overemphasis this Court’s decision in NIC Bank Ltd v Aquinas Francis Wasike & Another (supra) held that: “Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…” The respondent did not demonstrate the ability to repay the decretal amount if the appeal is successful. 3. On the issue of security for the execution of the decree, which is a mandatory condition under section 42(6) of the Civil Procedure Rules, the applicant offered to deposit a bank guarantee. The respondent stated there was no security as the said guarantee was not attached to the application. The applicant cited the decision in Kitoo v Muli & another (Civil Appeal E224 of 2023) [2024] KEHC 16758 (KLR) (4 November 2024) (Ruling), where the Court referred to the Court of Appeal case of Nduhiu Gitahi v Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100, where the Court of Appeal expressed as follows: “The process of giving security arises constantly. So long as the opposite party can be adequately protected, it is proper that security should be given in a way which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter which is immaterial. In an application for stay pending appeal, the court is faced with a situation where judgment has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal.” The Court, in declining to accept the bank guarantee in its ruling, stated as follows; “This Court agrees with the Counsel for the Respondent that the said bank guarantee is not suitable in this present case... It has not stated how each party will benefit from it hence it will pose a hindrance at the time of enforcement.” 4. The applicant stated that the bank guarantee is a commercial paper and could not be filed before. The respondent called for a joint account deposit of the decreed sum. The court finds the applicant's offer of a bank guarantee to be good and sufficient security. The court upheld the decision in Gitahi & another v Warugongo [1988] KECA 123 (KLR) where the Court of Appeal cited the holding of the court in Rosengrens Ltd v Safe Deposit Centres Ltd [1984] 3 All ER 198, where it was held: “We are faced with a situation where a judgment has been given. It is subject to appeal. It may be affirmed or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the defendant while giving no legitimate advantage to the plaintiffs … It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose it matters not whether the plaintiffs are secured in one way or another. If it would be easier for the defendants or if for any reason they would prefer to provide a bank guarantee rather than by cash, I can see absolutely no reason in principle why they should not do so.” 5. The court finds that the application is merited, the applicant having met all the conditions under Order 42 rule 6 of the Civil Procedure Rules. The court is further guided by the 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.”* 1. The court allows the application and issues the following Orders: 2. The court is pleased to issue an order of stay of execution of the judgment delivered on the 17th December 2025 pending the hearing and determination of the intended appeal, on condition that the applicant deposits in court a bank guarantee for the sum of Ksh. 3 Million from its bank within 30 days of this order failing, which will result in the order lapsing. 3. Costs of the application to the judgment holder, which addresses any prejudice he may suffer due to the court allowing the application. 4. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Respondent/Applicant: - Ms Songok petitioner/ respondent – Ms Jerop