Silvermon Company Ltd v Cherotich (Appeal E018 of 2026) [2026] KEELRC 1660 (KLR) (18 June 2026) (Ruling)

Silvermon Company Ltd v Cherotich (Appeal E018 of 2026) [2026] KEELRC 1660 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1660 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Appeal E018 of 2026 Nzioki wa Makau, J June 18, 2026 Between Silvermon Company Ltd Appellant and Valentine Cherotich Respondent (Being an Appeal against the judgment and decree of Hon. Benson. Ireri (CM) in Kisumu MC. ELRC No. E083 of 2023 delivered on the 22nd January 2026) Ruling 1.The Appellant has moved this Court by way of the application dated 20th February 2026 seeking an order for stay of execution of the judgment of the Trial Court delivered on 22nd January 2026 pending the hearing and determination of this appeal. The Appellant also seeks the costs of the application. 2.The application is premised on the nine grounds on its face as well as the supporting affidavit of Ms. Mary Mawia Mulyungi the Appellant’s in-house counsel. The Appellant contends that the stay of execution earlier obtained through its former advocates, Messrs Oraro & Company Advocates, on 22nd January 2026 is due to lapse, thereby necessitating its extension. It is further averred that the Appellant’s current advocates, Messrs Ombeta Ogonyo & Company Advocates, were granted leave to come on record on 12th February 2026 and thereafter acted expeditiously by filing the Memorandum of Appeal as well as the present application, thus occasioning no delay. The deponent further states that a stay of execution is necessary since the Respondent’s bill of costs is scheduled for taxation on 25th March 2026 and the Respondent may proceed with execution thereafter. She maintains that the intended appeal is arguable and has high chances of success and, should the decretal sum be paid out before the appeal is determined, the Appellant stands to suffer irreparable loss, particularly because the Respondent’s financial means are unknown. The Appellant further expresses its willingness to furnish security for the due performance of the decree and contends that the Respondent will suffer no prejudice if the orders sought are granted. Consequently, the Court is urged to allow the application in the interests of justice. 3.The application is opposed through the Respondent’s replying affidavit sworn on 25th February 2026. The Respondent contends that the application has been brought solely to deny her the fruits of a valid judgment. She asserts that the Appellant has failed to satisfy the requirements for the grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. In particular, she argues that the Appellant has not demonstrated the substantial loss it is likely to suffer if the stay is denied. The Respondent further contends that the appeal raises no arguable issues and that no security has been furnished for the due performance of the decree. Nevertheless, she states that should the Court be inclined to grant the orders sought, such grant ought to be conditional upon the Appellant depositing the decretal sum in court. She therefore urges the Court to dismiss the application with costs. 4.On 30th April 2026, when directions on disposal of the application were taken, the Appellant elected to canvass the application by way of written submissions, whereas the Respondent opted to rely entirely on her replying affidavit. Appellant’s Submissions 5.The Appellant submits that it has satisfied the three prerequisites for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules as elucidated in Elena Doudoladova Korir v Kenyatta University [2014] eKLR. According to the Appellant, it has demonstrated that it stands to suffer substantial loss if stay is denied, that the application was filed without unreasonable delay, and that it is ready and willing to furnish security for the due performance of the decree. 6.With respect to the question of substantial loss, it submits that it has an arguable appeal which will be rendered nugatory if the Respondent executes. The Appellant further contends that the decretal amount is substantial and the Respondent’s ability to repay if the appeal finally succeeds is unknown. It asserts that once doubt is raised regarding a respondent’s financial capability, the burden shifts to the respondent to demonstrate the ability to make a refund. It points out that the Respondent has not produced any documentary evidence of income or ownership of assets capable of meeting such refund. In support of this proposition, reliance is placed on Kenya Orient Insurance Company v Paul Mathenge Gichuki & another [2014] eKLR, where the Court held that the burden of proving the ability to refund the decretal amount shifts to the respondent once the applicant raises reasonable doubt as to that ability. 7.Regarding delay, the Appellant submits that the application was filed promptly. It points out that its current advocates received instructions on 11th February 2026, obtained leave to come on record on 12th February 2026, filed the Memorandum of Appeal on 17th February 2026, and lodged the present application on 20th February 2026. The Appellant further notes that the stay of execution granted on 22nd January 2026 had not lapsed by the time the present application was filed. 8.As concerns security for the due performance of the decree, the Appellant submits that it is prepared to deposit half of the decretal sum either in court or in a joint interest-earning account in the names of the advocates on record. It contends that such an arrangement would adequately safeguard the interests of both parties. In any event, the Appellant expresses its willingness to abide by any directions the Court may issue regarding security. In conclusion, the Appellant submits that the Respondent will suffer no prejudice if the orders sought are granted. It maintains that the Court ought to strike a balance between the Appellant’s undoubted right of appeal and the Respondent’s right to enjoy the fruits of her judgment. On that basis, the Appellant urges the Court to allow the application in the interests of justice. Disposition 9.The Appellant/Applicant seeks stay of execution which the Respondent herein is opposed to. The factors to consider in an application for stay are well set out in precedent and the law. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The Court should exercise the discretion in such a way as not to prevent an appeal. Generally, the principle to consider whether the grant or refuse a stay is, if there is no other overwhelming hindrance, a stay ought to issue so as not render an appeal nugatory. A court should not refuse a stay if there are good grounds for granting it. Merely because in the court’s opinion, a better remedy that may become available to the applicant at the end of the proceedings should not bar grant of stay. The court when exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances in the particular case. Further, when the court is exercising its power to grant stay, it can order the party to avail security for the due performance of the decree. Ordinarily, failure to comply with the conditions set will lead to the automatic lapse of the stay granted. 10.In this case so as not to cause the appeal to be rendered nugatory, an order for stay ought to issue. It however will issue on condition that the Appellant deposits the entire decretal sum in an interest earning account in the names of the advocates on record for the parties. Such deposit must be made within 30 days of today failing which the stay will automatically lapse if the default is wholly attributable to the Appellant. The costs of the motion will abide the outcome of the Appeal herein. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 18TH DAY OF JUNE 2026NZIOKI WA MAKAU, MCIARB.JUDGE