Wafula v Menengai Oil Refineries Limited (Cause E233 of 2024) [2026] KEMC 106 (KLR) (26 May 2026) (Ruling)

Wafula v Menengai Oil Refineries Limited (Cause E233 of 2024) [2026] KEMC 106 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 106 (KLR) Republic of Kenya In the Nakuru Law Courts Cause E233 of 2024 PA Ndege, SPM May 26, 2026 Between Bramwel Matakala Wafula Claimant and Menengai Oil Refineries Limited Respondent Ruling 1.Before this court is a Notice of Motion dated 03032026 brought under article 50 (1) of the Constitution of Kenya, sections 3 and 12 of the Employment and Labour Relations Court Act, Rules 44 and 45 of the Employment and Labour Relations Court (Procedure Rules) seeking the following:a.Spentb.Spentc.This Honourable Court be pleased to stay execution of the judgement delivered in this matter on 24/02/2026 in pending hearing of the appeal lodged before the Employment and labour relations Court on such terms as are just.d.This Honourable Court be pleased to make such other and or further orders towards the ends of justice.e.Costs of this application be provided for. 2.The application is premised on the grounds on the face of it and the averments in the supporting affidavit sworn by Peter Kanenje Muchibi. The applicant seeks for orders in the nature of stay of execution pending appeal. Respondent/Applicant submissions 3.The Respondent/Applicant made submissions in writing dated 10/04/2026 on the issues of merit and jurisdiction of the court to hear their application dated 03/03/2026. In their submissions they argued that the application was merited relying on order 42 rule 6(1) that an appeal does not operate as a stay of execution but rather a formal application should be made to the court appealed from or the appellate court itself. 4.In the submissions they also argued that they would suffer substantial loss if the stay was not granted and the appeal succeed in their favour. They argued that the Claimant/Respondent does not have known assets or a known stable source of income thus he may not be in a position to refund the decretal sum once it is paid. 5.The Respondent/Applicant submitted that they were open to depositing the entire decretal sum in a joint interest earning account held in the names of both advocates or depositing the amount in court. In the submissions it was further stated that this court has jurisdiction as provided by rule 21 (1) of the Employment and Labour Relations (Procedure) Rules 2024 that states that where an application for stay has been logged pending appeal, the applicant shall in the supporting affidavit declare if a similar application has been filed in any other court thus denoting that no specific court is designated to hear matters of stay pending appeal. The Respondent/ Applicant also submitted that they have filed the application herein within a reasonable time, considering that the Judgement was delivered on 24/02/2026 while the application was made on 03/03/2026. Claimant/Respondent Submission 6.The Claimant/Respondent opposed the application by way of a Replying Affidavit dated 12032026 and sworn by Bramwel Matakala Wafula which they relied on as their submissions. In the affidavit it was averred that the court lacked jurisdiction to hear the matter citing rule 21 (2) of the Employment and Labour relations Court (Procedure) Rules 2024 and that they had not been served with a memorandum of appeal. It was also averred that the stay was a calculated ploy to deny the Claimant/Respondent full realisation of Justice. Determination 7.The issues of determination herein are whether this court has jurisdiction to hear and determine this matter and if it has such jurisdiction whether the Respondent/Applicant has proved all conditions set for grant of stay. 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. 8.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 lodged 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. 9.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. 10.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 decree should be brought without unreasonable delay. 11.The Respondent/Applicant has clearly shown that the Claimant/ Respondent has not disclosed a stable source of income thus he may not be able to refund the decretal sum if the appeal is settled in favour of the Respondent/Applicant and a stay is not issued. The Respondent /applicant has also offered to deposit the decretal sum in a joint interest earning account in the names of both advocates or to deposit the amount in court. The stay application was also made without undue delay as the judgement was delivered on 24/02/2026 and the appeal was lodged on 03/03/2026. 12.The court thus orders that a stay of the Judgement delivered on 24/02/2026 is granted pending the hearing of the appeal lodged before the Employment and Labour Relations Court on the condition that the decretal sum herein be deposited in a joint interest earning account in the names of both advocates. Costs herein to abide the outcome of the appeal. DATE, SIGNED AND DELIVERED AT NAKURU ON THIS 26TH DAY OF MAY 2026HON. ALOYCE-PETER- NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Claimant’s Counsel: S. K. MburuRespondent’s Counsel: MuliClaimant: N/AMuli: The deposit be done within 30 daysMburu: I do agreeCT: The deposit be made within 30 days from the date hereof.