https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/107

Shikopo v Menengai Oil Refineries Ltd (Cause E232 of 2024) [2026] KEMC 107 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 107 (KLR) Republic of Kenya In the Nakuru Law Courts Cause E232 of 2024 PA Ndege, SPM May 26, 2026 Between Kennedy Likovelo Shikopo Claimant and Menengai Oil Refineries Ltd Respondent Ruling 1.The Respondent/Applicant moved this court by way of Notice of Motion dated 03/03/2026 mainly seeking an order of stay of execution of the judgment delivered in this matter on 24/02/2026 pending the hearing of the appeal lodged before the Employment and Labour Relations Court at Nakuru on such terms as are just. The Respondent further prays that the Honorable Court be pleased to review its judgment to correct the errors apparent on the record relating to the cause number and the name of the Claimant. 2.The application is premised on thejkuk grounds appearing on the face thereof and the supporting affidavit of Peter Kanenje Muchibi, the Respondent’s Senior Human Resources Officer, sworn on 02/03/2026. The Applicant contends that the court entered judgment in favour of the Claimant/Respondent for the sum of Ksh. 1,419,347.69 together with costs and interest. The Applicant avers that it is dissatisfied with the said judgment and has lodged an appeal which has high chances of success 3.The Applicant further submits that unless stay is granted, it stands to suffer substantial loss as the Claimant may be unable to refund the decretal amount should the intended appeal succeed. The Applicant further expresses willingness to furnish security as many be ordered by the court. 4.As to the order of review, the applicant contends that the Honorable Court made an error in its written judgment. That instead of indicating the cause number in the judgment as Employment Cause Number E232 of 2024, the Honorable Court indicated it as number E233 of 2024 which number is erroneous. That besides, in the judgment, the Honorable Court indicated the Claimant’s name as Bramwell Matakala Wafula instead of Kennedy Wafula Shikipo. 5.The Claimant/Respondent does not oppose the order of review as prayed for herein. He however opposed the grant of stay pending appeal. In his Replying Affidavit sworn at Nakuru on 12/03/2026, the Claimant contends that he is yet to be served with any Memorandum of Appeal against the judgment herein together with a letter to the Chief Executive Officer requesting for typed proceedings. That the Respondent’s appeal has limited chances of success on account that the matters allegedly appealed against being an award of Normal Overtime and Public Holiday pay were properly computed in pleadings. That the 30 days stay of execution ordinarily granted as a matter of practice to a party against whom adverse orders have been issued is normally to facilitate compliance with adverse orders or filing of an appeal whereof the Respondent herein has already filed an appeal thereof negating the necessity of temporary 30 days stay pending the filing of an appeal or compliance with adverse orders. That this application is a calculated ploy to delay the realization of full industrial justice on the part of the Claimant/ Respondent herein on account that the Honorable Trial Court is functus Officio with regards to matter stay of execution pending the hearing of the appeal by dint of the provisions of Section 21(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which requires that an application for stay of execution be filed in the appeal file which in this case would be the Employment and Labour Relations Court. That in the unlikely event that the Court finds that it has jurisdiction to hear this matter, then the Honorable Court order for security by way of a deposit of the entire decretal amount together with costs in court or in a joint interest earning account. 6.Having considered the application, the affidavits on record and the submissions by the Respondent, and the fact that the prayer for the order of review has not been opposed by the Claimant, I do hereby grant the order of review as prayed. The cause number and the name of the claimant appears to have been erroneously confused with a sister file Nakuru Cmelrc No. 233 Of 2024 Bramwel Matakala Wafula Vrs Menengai Refineries Limited. I do agree that the prayer for an order of review meets the threshold for review as set out under Rule 74 of the Rules governing these cases, i.e. the Employment and Labour Relations Court (Procedure) Rules, 2024 which provides as follows –74.Review1.A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—a.if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;b.on account of some mistake or error apparent on the face of the record;c.if the judgment or ruling requires clarification; ord.for any other sufficient reason.2.…3.A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or Ruling or order to be reviewed.4.The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.5.Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.6.An order made for a review of a decree or order shall not be subject to further review. 7.The issues for determination herein is whether this court has jurisdiction to hear and determine the application for stay and if it has such jurisdiction whether the Respondent/Applicant has proved all conditions set for grant of stay. 8.On the first issue of jurisdiction this court has gone through the provisions of rule 21 of the Employment and Labour Relations Court (Procedure) Rules that provides:Stay of execution in case of appeal(1)Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court.(2)An application for stay of execution pending appeal shall be filed in the appeal file. 9.It is the understanding of this court that whereas rule 21 (2) provides that a stay of execution pending appeal should be filed in the appellate file, rule 21 (1) does not state a specific court, it rather requires that such an application if logged in another court be stated in the verifying affidavit. Relying on this, this court thus finds that such an application can be filed in any other court provided that the same is declared and this court thus has jurisdiction to hear the application. 10.As jurisdiction has been established, this court thus now moves to examine whether the Respondent/Applicant has proved satisfied all the conditions set for grant of stay. Order 42 rule 6 (2) of the Civil Procedure Rules states 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. 11.Further in the case of Carter And Sons Ltd –Vs- Deposit Protection Fund Board and Others, Civil Appeal No. 291 of 1997 the court added that aside from the statutory requirements, an application for stay of execution on judgement or degree should be brought without unreasonable delay. 12.The principle governing grant of stay of execution were set out in Butt vs Rental Restriction Tribunal (1982) KLR 417, where the Court of Appeal held that the power to grant stay is discretionary and ought to be exercised in such a manner as not to render an appeal nugatory. Further, in Kenya Shell Ltd vs Benjamin Karuga Kibiru & another [1986] KLR 410, the Court made emphasis that substantial loss is the cornerstone in an application for stay pending appeal. 13.The judgment herein was delivered on 24/02/2026 and the present application filed on 03/03/2026. I am thus satisfied that the application was brought without unreasonable delay. On substantial loss, the Applicant has expressed apprehension that recovery of the decretal amount may prove difficult should the appeal succeed. The Respondent has not controverted the said averment in material way. 14.On Security, the Applicant has expressed willingness to comply with any conditions imposed by the court especially as to depositing of the entire decretal amount to the court or a joint interest earning account. Accordingly, and in the interest of justice, I am satisfied that the Applicant/Respondent has met the threshold/conditions for grant of stay of execution pending appeal. 15.Consequently, the Notice of Motion dated 03/03/2026 is allowed as follows:-a.This Honorable Court hereby reviews its judgment herein to correct the errors apparent on the record relating to the cause number (to read E232 OF 2024 instead of 233 of 2024) and the name of the Claimant (to read Kennedy Likovelo Shikopo instead of Bramwell Matakala Eafula).b.There shall be a stay of execution of the Judgment delivered on 24/02/2026 together with any consequential decree pending the hearing and determination of the appeal lodged herein.c.The Applicant shall deposit security in the form of the decretal sum herein in an interest earning joint account in the names of counsel for the parties within 30 days from the date hereof.d.In default compliance with Order c above, the stay orders herein shall automatically lapse.e.Costs of the application shall abide with the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT OPEN COURT THIS 26TH DAY OF MAY 2026ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Claimant’s Counsel: MburuRespondent’s Counsel: MuliClaimant: N/A