https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1792

County Secretary Government of Murang’a v Wambiri (Appeal E007 of 2026) [2026] KEELRC 1792 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1792 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Appeal E007 of 2026 SC Rutto, J June 26, 2026 Between The County Secretary Government Of Murang’A Appellant and David Nduati Wambiri Respondent Ruling 1.By a Notice of Motion dated 3rd March 2026, the Appellant/Applicant seeks orders for stay of execution of the decree and judgment delivered on 15th December 2025 in Murang’a CMCC ELRC No. E031 of 2024, David Nduati Wambiri v the County Secretary, Murang’a County Government, pending the hearing and determination of its intended appeal. 2.The Notice of Motion is premised on the grounds set out on its face and is supported by the affidavit of James Thuku, the Applicant’s County Attorney. 3.Mr. Thuku deposes that on 15th December 2025, the learned trial magistrate entered judgment against the Applicant in the sum of Kshs 3,436,996/- in Murang’a CMCC ELRC No. E031 of 2024, David Nduati Wambiri v the County Secretary, Murang’a County Government. He avers that the said decision is impugned on the basis that it contravenes the burden of proof, offends Section 107(1) of the Evidence Act, is not supported by the evidence on record, and is founded on a misapprehension of the material facts and erroneous legal principles. 4.He further states that unless stay of execution is granted, execution proceedings against the Applicant and county officers of Murang’a County Government are likely to proceed to their detriment and may occasion loss of public funds, notwithstanding that the intended appeal has high chances of success. 5.Mr. Thuku further deposes that the Respondent has no known means of refunding the decretal sum should the same be paid out before the appeal is heard and determined. 6.He further avers that in the absence of the orders sought, the appeal will be rendered nugatory and reduced to an academic exercise. 7.It is Mr. Thuku’s further deposition that the Applicant, being a public entity, is exempted under Order 42 Rule 8 of the Civil Procedure Rules from the requirement to furnish security pending appeal. 8.Opposing the Motion, the Respondent herein, David Nduati Wambiri, swore a Replying Affidavit dated 24th March 2026 in which he deposes that the process of executing against the government is highly convoluted and time-consuming and therefore does not need to be stopped through a court order. 9.He further contends that no prejudice will be suffered by the Applicant if execution proceeds, as it may raise its objections at the tail end of the process. 10.Mr. Wambiri is of the view that granting a blanket stay would occasion him prejudice while affording the Applicant superfluous protection. Submissions 11.The Notice of Motion was canvassed by way of written submissions. Although the Applicant uploaded its written submissions, the same were not paid for and were therefore deemed not properly filed. 12.On the part of the Respondent, it has been submitted that the total decretal sum is Kshs. 10,463,476, out of which the sum of Kshs. 3,436,996 was specifically directed by the Court to be remitted to the County Pensions Fund for his onward transmission. The Respondent therefore argues that there is no justification for staying such remittance, and in any event, the Court may order the immediate release of the said sum to him without occasioning any prejudice to the Appellant. 13.While admitting that Order 42 Rule 8 of the Civil Procedure Rules provides that security may not be required from certain public entities, the Respondent submits that the Court nevertheless retains discretion depending on the circumstances of each case. In support of this position, the Respondent has placed reliance on the case of Shiramba & 27 Others v County Government of Uasin Gishu & 3 Others [2023] KEELC 21383. Analysis and determination 14.The singular issue arising for determination is whether an order of stay of execution pending appeal ought to be granted. In determining this issue, Order 42 Rule 6(2) of the Civil Procedure Rules is instructive and provides as follows:(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. 15.This provision, in essence, requires an applicant seeking stay of execution of a decree or order pending appeal to demonstrate to the Court that:a.Substantial loss may result to him unless the order is made;b.The application has been made without unreasonable delay; andc.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 16.In addition to the foregoing requirements, the Court in Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR, per Odunga J. (as he then was), observed that courts are enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act and in the interpretation and application of its provisions. 17.The learned Judge further cited with approval the decision in Stephen Boro Gitiha v Family Finance Building Society & 3 Others, Civil Application No. Nai. 263 of 2009, where the Court held that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way. 18.Having set out the applicable legal principles, I now turn to consider whether the Applicant has satisfied the requisite conditions for the grant of an order of stay of execution pending appeal. Substantial loss 19.On the question of substantial loss, Mr. Thuku, the County Attorney of Murang’a County Government, deposes that unless the judgment and decree of the lower court are stayed, execution proceedings against the Applicant and/or officers of the County Government will proceed unabated, thereby exposing public funds to the risk of loss. He further avers that the Respondent has no known financial means to refund the decretal sum in the event that the appeal succeeds after payment has been made. 20.The primary purpose of an order of stay of execution is to preserve the subject matter of the dispute pending the determination of the appeal. In exercising its discretion, the Court is required to strike a balance between the competing interests of the parties. While a successful litigant is entitled to enjoy the fruits of his judgment, an appellant who has exercised his right of appeal should not be exposed to the risk of being unable to recover the decretal sum should the appeal ultimately succeed. 21.In the present case, the Respondent has not placed before the Court any evidence demonstrating his financial ability to refund the decretal sum in the event that the appeal is successful. 22.In the circumstances, the Court finds that the Applicant’s apprehension is well-founded and is persuaded that the Applicant, and by extension the County Government of Murang’a, stands to suffer substantial loss if the orders sought are declined and the appeal ultimately succeeds. Unreasonable delay? 23.From the record, judgment herein was delivered by the trial Court on 15th December 2025, while the Instant Motion was filed on 6th March 2026. In the Court’s view, the intervening period of approximately two (2) months and nineteen (19) days cannot, in the circumstances, be said to constitute inordinate or unreasonable delay. Security 24.Turning to the aspect of security, Mr. Thuku has deposed in his Supporting Affidavit that the Applicant, being a public entity, is exempt under Order 42 Rule 8 of the Civil Procedure Rules from the requirement to furnish security pending the hearing and determination of the appeal. 25.Order 42 Rule 8 of the Civil Procedure Rules provides as follows: -“No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.” 26.Fundamentally, the foregoing provision stipulates that no security shall be required from the Government where a stay of execution is granted, where the Government is defending a suit, or where a public officer is sued in their official capacity. 27.In the present case, it is not in dispute that the Applicant is the County Secretary of the County Government of Murang’a and is therefore a public officer sued in his official capacity. Accordingly, by virtue of Order 42 Rule 8 of the Civil Procedure Rules, he is exempted from the requirement of furnishing security as a condition for the grant of stay of execution pending appeal. 28.In view of the foregoing, and having found that the Applicant has demonstrated that he is likely to suffer substantial loss if an order of stay is not granted, and in order to give effect to the overriding objective, the Court is inclined to grant the orders sought. 29.Consequently, the Notice of Motion dated 3rd March 2026 is hereby allowed, and an order of stay of execution of the judgment and decree in Murang’a CMCC ELRC No. E031 of 2024 is hereby granted pending the hearing and determination of the appeal. 30.The costs shall abide the outcome of the Appeal. DATED, SIGNED AND DELIVERED AT NYERI THIS 26TH DAY OF JUNE, 2026.………………………………STELLA RUTTOJUDGEIn the presence of:Ms. Munyua for the Applicant/AppellantMr. Ndonga instructed by Mr. Mbuthia for the RespondentNdati Court AssistantOrderIn 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 had been guided by Article 159(2)(d) of 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.