https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2107

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT ELDORET** **APPEAL NO. E035 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **UNIVERSITY OF EAST AFRICA BARATON ….……… APPELLANT** **VERSUS** **DOROTHY JELAGAT ……….……..……..……………. RESPONDENT** **RULING** 1. The application before me for determination is dated 18th December, 2025 and has been brought by the Appellant/Applicant under the provisions of Rule 21 of Employment and Labour Relations Court (Procedure Rules, 2024, and seeks orders that: 2. Service of the application be dispensed with in the first instance 3. Pending the hearing interparties and determination of the application there be stay of execution or further execution of the decree in Kapsabet Chief Magistrate Court ELRC No.E009 of 2021 4. Pending the hearing and determination of the appeal herein there be stay of execution and further execution of the decree in Kapsabet Chief Magistrate Court ELRC No.E009 of 2021 5. Costs of the application be provided for 6. The application is supported by the affidavit of PAULINE AKELLO, the Applicant’s Legal Officer sworn on 18th December, 2025. 7. The grounds upon which the application is made are contained at the foot of the application as reiterated and expounded in the supporting affidavit as follows: 8. There is a decree issued in the subordinate court 9. There is a pending appeal from the decision of the subordinate court 10. The appeal is yet to be heard and it challenges the entire decision of the subordinate court 11. The amount awarded is substantial 12. The Respondent **DOROTHY JELAGAT** filed a replying affidavit sworn on 19th January, 2026 in which she deposes that she does not oppose the application but urged the court to allow the same on condition that 50% of the decretal sum is released to her noting that the Appellant only moved this court after execution process had been commenced. It is her position that the application is intended to delay her enjoyment of the fruits of her judgement. 13. The application was disposed of by way of written submissions which both parties filed and exchanged. The submissions of the Applicant are dated 4th May, 2026 while the submissions of the Respondent are also dated 4th May, 2026. 14. I have considered the application and the submissions of the parties. In view of the fact that the Respondent is not opposed to the application save for the condition that 50% of decretal sum be released to her, the only issue for determination is whether the Applicant should pay 50% to the Respondent and deposit the balance in an interest earning account in the names of counsel for the parties. 15. **Order 42 rule 6(2)** of Civil Procedure Rules provides 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.”*** 1. It is the view of the court that the Respondent has not justified her prayer that 50% of the decretal sum should be paid to her. 2. It is not possible at this juncture for the court to determine whether or not the appeal will succeed or fail or only partially succeed. Further, the Respondent has not indicated that should the appeal succeed she will be in a position to refund the 50% of the decretal sum if released to her. 3. The Applicant has expressed fears that the Respondent may not be in a position to refund the decretal sum should the appeal succeed as she is currently unemployed in which event the Applicant is likely to lose the same. In ***National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another [2006] eKLR*** the court held that where an Applicant expresses a reasonable apprehension that a Respondent may be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate his or her financial capability. The Applicant's apprehension therefore remains unchallenged. 4. In the circumstances, and bearing in mind that the purpose of an order for stay is to preserve the subject matter of the appeal, I am satisfied that the Applicant has demonstrated that it is likely to suffer substantial loss if execution proceeds before the appeal is heard and determined. 5. Under Order 42 rule 6(2) of Civil Procedure Rules, the Applicant is required to provide “*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.”* 6. For the foregoing reasons, the application dated **18th December, 2025** is hereby **allowed** in terms of prayer (3) thereof, on condition that the Applicant shall provide security by way of deposit of **one-half (50%) of the decretal sum** in an interest bearing account in the names of counsel for both parties within **thirty (30) days** from the date hereof. 7. Failure to comply with the above condition shall automatically render the stay orders vacated and the Respondent shall be at liberty to execute. 8. The costs of this application shall follow the outcome of the appeal. **DATED, DELIVERED AND SIGNED** **ON THIS 18TH DAY OF JUNE, 2026.** **M. ONYANGO** **JUDGE**