https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1567

Simba Cool East Africa Limited v Omundu (Miscellaneous Application E117 of 2025) [2026] KEELRC 1567 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1567 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application E117 of 2025 K Ocharo, J May 28, 2026 Between Simba Cool East Africa Limited Applicant and Samuel Ochieng Omundu Respondent Ruling 1.In the Application dated 9th October, 2025, the Applicant prayed for orders;1.That this application be certified as urgent and be heard ex parte in the first instance.2.That this Honourable Court be pleased to grant leave to the firm of Makaka & Associates, Advocates, to come on record for the Applicant/Intended Appellant in place of Kokul & Partners Advocates, the previous advocates on record in Mombasa Chief Magistrate's Court MC/ELRC/E417 of 2023.3.That this Honourable Court be pleased to grant leave to the Applicant to file an appeal out of time against the entire Ruling delivered on 18th July, 2025, by Hon. D.W. Nyambu, Chief Magistrate in Mombasa Chief Magistrate's Court MC/ELRC/E417 of 2023; Samuel Ochieng Omundu v. Simba Cool East Africa Limited.4.That this Honourable Court be pleased to order a stay of execution of the Judgement and Decree issued on 17th October, 2024, in Mombasa Chief Magistrate's Court MC/ELRC/E417 of 2023; Samuel Ochieng Omundu v. Simba Cool East Africa Limited pending the hearing and determination of the intended appeal.5.That the Application be heard inter partes on such date and time as this Honourable Court may direct.6.That the costs of this Application abide by the outcome of the Intended Appeal. Applicant’s case 2.The Applicant’s case is that judgment in Mombasa CM/ELRC/E417 of 2023 was delivered on 17th October 2024, awarding the Respondents Kshs. 2,040,267.85, plus costs and interest. The matter had proceeded, and judgment was entered ex parte because its former advocates, Kokul & Partners Advocates, failed to inform the court of the hearing dates and to attend court. 3.It later filed an application dated 15th May 2025 seeking to set aside and stay the judgment, but it was dismissed on 18th July 2025. Dissatisfied, it filed an appeal and a notice of motion on 24th July 2025, within the 30 days allowed under section 79G of the Civil Procedure Act. However, on 8th October 2025, the Court struck out the appeal and the application on the ground that its new advocates had come on record unprocedurally, without leave of the court as required by Order 9 Rule 9 of the Civil Procedure Rules. 4.It is further stated that its current advocates have since obtained written consent from the former advocates, thereby curing the procedural defect. It argues that the earlier appeal was struck out on a technicality, not on the merits, and that this technical lapse should not bar its right of appeal under Articles 50 and 159(2)(d) of the Constitution. 5.The Applicant further states that the delay was not due to indolence but to the need to comply with procedural requirements. It contends that the intended appeal is arguable and that, unless leave and a stay of execution are granted, it will suffer substantial loss because the Respondents have already commenced execution through warrants of attachment and a proclamation dated 14th May 2025. 6.The Applicant also states that it is willing to comply with any conditions imposed by the Court, including the provision of security, and therefore prays for leave to file the appeal out of time and for a stay of execution. Respondent’s case 7.The Respondent’s case is that the Applicant’s application dated 9th October 2025 is without merit and should be dismissed with costs. He states that the Applicant was properly served with the memorandum of claim and summons on 3rd August 2023, after which Kokul & Partners Advocates entered appearance for the Applicant. The Respondent maintains that all subsequent mention and hearing notices were duly served upon the Applicant’s advocates, including notices for the mention on 29th February 2024, the hearing on 14th May 2024, and the mention for filing submissions on 25th July 2024. 8.The Respondent further states that he testified and closed his case on 14th May 2024, and judgment was later delivered on 17th October 2024. He contends that the Applicant’s advocate was duly notified of the judgment, and that the judgment on record is regular. 9.He also states that the ruling delivered by Hon. Nyambu on 18th July 2025 was sound in law because the Applicant failed to serve its application for leave to come on record upon the advocate who was properly on record. 10.The Respondent argues that there has been an inordinate delay, that the Applicant is an indolent litigant, and that the present application has been brought in bad faith merely to stop him from enjoying the fruits of his judgment. 11.He also points out that the Applicant had filed a similar application for stay in Mombasa ELRC Appeal No. E143 of 2025, later withdrew it, and has still not paid the court-ordered advocate’s costs of Kshs. 15,000. 12.On the intended appeal and stay, the Respondent states that the draft memorandum of appeal does not raise cogent grounds, and that the Applicant has not demonstrated substantial loss or shown that its operations would be curtailed if the decretal sum is paid. He therefore prays that the application be dismissed with costs. Analysis and determination 13.Issues for determinationi.Whether the firm of Makaka & Associates Advocates should be granted leave to come on record for the Applicant.ii.Whether the Applicant should be granted leave to file an appeal out of time against the ruling delivered on 18th July 2025.iii.Whether stay of execution of the judgment and decree delivered on 17th October 2024 should issue pending the intended appeal. 14.The Applicant changed Advocates post -Judgment of the lower Court. Order 9 Rule 9 of the Civil Procedure Rules requires that where a party wishes to change advocates after judgment, such a change may only be effected by an order of the court upon application with notice to all parties, or upon consent filed between the outgoing advocate and the proposed incoming advocate. The Advocates now have their predecessors' consent on record to come on record for the Applicant. Leave is hereby granted for Makaka & Associates Advocates to come on record for the Applicant. 15.The Applicant explains that it initially filed an appeal and an application on 24th July 2025, within time, but both were struck out on 8th October 2025 because the Advocate who filed them had not complied with Order 9 Rule 9. It is important to note that the present application was filed on 9th October 2025, the day after the striking out. 16.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court stated that extension of time is discretionary and that in an application for extension of time, the court should consider, among other factors, the length of delay, the reason for delay, whether the intended appeal is arguable, the degree of prejudice to the respondent, and whether the application has been brought without undue delay. 17.Applying those principles, the delay from 18 July 2025 to the filing of the present application is explained by the fact that the Applicant had filed an earlier appeal within time, but it was struck out on a procedural ground. The present application was filed promptly after the striking out. Although the Respondent argues that the Applicant is indolent, the chronology shows that the Applicant did take steps to challenge the ruling, albeit irregularly at first. The intended appeal also raises arguable issues. I therefore find that a proper basis has been laid for an extension of time. 18.The governing provision for stay of execution pending appeal is Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant to show that substantial loss may result unless stay is granted, that the application has been made without unreasonable delay, and that such security as the court orders has been provided. 19.In light of the premises hereinabove, it is not difficult to come to the conclusion, as I hereby do, that the current application was filed timeously. 20.The Applicant states that execution has commenced through warrants of attachment and a proclamation dated 14th May 2025, and that unless stay is granted, its property may be attached and sold. However, the Respondent correctly argues that execution, by itself, is a lawful process and does not automatically constitute a substantial loss. 21.The mere fact that execution has been levied, or even completed, does not by itself constitute substantial loss because execution is a lawful consequence of judgment. However, considering the circumstances of the matter, including the judgment amount, and the ruling of the trial Magistrate, I am inclined to hold, and hereby do so, that the justice of this matter required that an order for stay pending appeal be granted. 22.Consequently, the Applicant’s application is hereby allowed on the following terms;a.The Applicant is hereby granted leave to file an appeal against the ruling of the trial Court delivered on 18th July 2025, in MC/ELRC/E 417 of 2023.b.Pending the hearing and determination of the appeal, there shall be a stay of execution of the lower Court decree, subject to its deposit in Court, KShs. 2,040,267.85 within 30 days of today.c.In default, execution to proceed. READ SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE