https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2095

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU CAUSE NO. E059 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) MUFTI HEMED WAZIR………………..….…….....…… APPLICANT P.G. SECURITY VERSUS SERVICES……..............APPLICANT/RESPONDENT RULING Introduction 1. The Respondent/Applicant filed a Notice of Motion dated 26th February 2026 under Certificate of urgency seeking the following orders that: 1.Spent 2.The firm of M/S Omondi B. A & Associates Advocates be granted leave to come on record for the Respondent/Judgment debtor in place of Ndeda & Associates Advocates. 3.This Honourable Court be pleased to order a temporary stay of execution of the judgment and decree issued herein on 6th NAKURU CAUSE NO. E059 OF 2025 RULING 1 | P A G E February, 2026 pending the hearing of this application inter-parties. 4.This Honourable Court be pleased to order a stay of execution of the Judgment delivered on 6th February 2026 pending the hearing and determination of the intended appeal. 5.Costs of this application be provided for. 2. The application is brought under Order 9 Rule 9, Order 42 Rule 6 of the Civil Procedure Rules, section 1,1A, 3 and 3A of the Civil Procedure Act and all enabling provisions of the law. Respondent/Applicant’s supporting affidavit 3. The application is supported by Awour Berly Omondi, the Respondent/Applicant’s Advocate, sworn on even date as the application. 4. The Respondent/Applicant avers that it is seeking leave to come on record and for a stay of execution following judgment delivered on 6th February 2026 for Kshs.272,545/= plus interest. 5. The Respondent/Applicant avers that it was previously represented by Ndeda & Associates NAKURU CAUSE NO. E059 OF 2025 RULING 2 | P A G E Advocates and that a new advocate must seek the Court’s leave. 6. The deponent states that the Claimant/Respondent has already moved to tax costs, placing it at imminent risk, and that a Notice of Appeal has been lodged at the Court of Appeal, Nakuru. 7. The Respondent/Applicant emphasizes that unless stay is granted, the appeal will be rendered ineffectual and nugatory, noting the application was filed without delay and that the appeal has strong prospects of success. 8. The Respondent/Applicant further argues that the decretal sum is substantial and recovery would be difficult if execution proceeds, urging the court to grant the orders sought to prevent grave prejudice and substantial loss. Applicant/Respondent’s replying affidavit 9. The Applicant/Respondent opposed the application vide a replying affidavit sworn by the Applicant/Respondent dated 14th March 2026. NAKURU CAUSE NO. E059 OF 2025 RULING 3 | P A G E 10. The Applicant/Respondent contends that the application is bad in law, made in bad faith, and an abuse of process, arguing that the Respondent has not met the legal threshold for a stay of execution. 11. The Applicant/Respondent asserts that no evidence of substantial loss has been shown, no memorandum of appeal has been filed, and no proof exists that he lacks the means to refund the decretal sum if the appeal succeeds. 12. The Applicant/Respondent maintains that the Respondent/Applicant’s claims of an arguable appeal are speculative and unsupported, and that the right to appeal must be balanced against his right to enjoy the fruits of judgment. 13. The Applicant/Respondent further avers that the temporary stay granted on 27th February 2026 was conditional upon deposit of the decretal sum within 20 days, failure of which renders the stay vacated and ineffective. NAKURU CAUSE NO. E059 OF 2025 RULING 4 | P A G E 14.The Applicant/Respondent therefore prays that the application be dismissed with costs to allow execution to proceed. Respondent/Applicant’s supplementary affidavit 15.The Respondent/Applicant filed a supplementary affidavit stating that the failure to attach the draft memorandum of appeal to the application for stay of execution dated 26th February 2026 was caused by technical and connectivity challenges within the judiciary’s online filing system. 16. The Respondent/Applicant clarifies that the omission was not deliberate but resulted from system downtime during electronic filing. Upon discovering the error, the advocate promptly regularized the record by filing the missing document, which demonstrates that the intended appeal is not frivolous and has high chances of success. 17. The Respondent/Applicant urges the Court to admit the annexed memorandum in the interest of justice and fairness, emphasizing that no prejudice will be occasioned and praying that the application be allowed. NAKURU CAUSE NO. E059 OF 2025 RULING 5 | P A G E 18.Parties canvassed the application by way of written submissions. Respondent/Applicant’s submissions 19. The Respondent/Applicant relied on the legal principles governing applications for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, which require proof of substantial loss, filing without unreasonable delay, and provision of security for due performance of the decree. The Respondent/Applicant relied on the case of Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR), where the court emphasized compliance with these three conditions. Further, in Absalom Dova v Tarbo Transporters [2013] eKLR, the court held that stay of execution is a discretionary remedy meant to balance the rights of both parties: the Appellant’s right to appeal and the decree holder’s right to enjoy the fruits of judgment without causing injustice. In James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) clarified that mere commencement of execution does not amount to substantial loss; rather, the applicant must demonstrate that execution would create a state of NAKURU CAUSE NO. E059 OF 2025 RULING 6 | P A G E affairs that irreparably affects the core of the appeal, making preservation of the status quo essential to prevent injustice. 20. The Respondent/Applicant argued that it has demonstrated substantial loss may occur if execution proceeds before the appeal is heard, as recovery of the decretal sum would be difficult and could render the appeal nugatory. The Respondent/Applicant submitted that it has met the legal threshold for a stay of execution pending appeal by depositing the entire decretal amount in court as security, thereby safeguarding the respondent’s interests. The Respondent/Applicant relied on the case of Butt v Rent Restriction Tribunal (1982) KLR 417, in which the court emphasizes that the power to grant a stay is discretionary and should be exercised to preserve the appeal’s substratum and prevent injustice. 21. The Respondent/Applicant submitted that the application was filed without delay and that the appeal is arguable and meritorious, deserving a fair hearing under Article 50(1) of the Constitution of Kenya, 2010. The Respondent/Applicant relied on the NAKURU CAUSE NO. E059 OF 2025 RULING 7 | P A G E case of Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Ltd (1st Garnishee) & Another (2019) IKEHC 446 (KLR) it concludes that the Applicant has fully complied with the conditions for stay and urged the court to exercise its discretion judiciously to preserve the appeal pending determination. Applicant/Respondent’s submissions 22. The Applicant/Respondent submitted that the application is incompetent, premature, and an abuse of court process. The Applicant/Respondent contended that although a Notice of Appeal was lodged on 26th February 2026, no Memorandum of Appeal or Record of Appeal has been filed within the mandatory 60 days under Rules 84 and 86 of the Court of Appeal Rules, 2022, leaving no competent appeal to preserve. 23. The Applicant/Respondent emphasises that the Respondent/Applicant has failed to demonstrate substantial loss as required under Order 42 Rule 6(2) of the Civil Procedure Rules, noting that execution is a lawful process and cannot itself amount to substantial loss. Authorities cited include NAKURU CAUSE NO. E059 OF 2025 RULING 8 | P A G E Equity Bank Limited V Taiga Adams Company Limited [2006] KEHC 860 (KLR) and David Morton Silverstein v Atsango Chesoni [2002] KECA 287 (KLR) where court held that stay requires a genuine and arguable appeal; National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR and Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410 held that substantial loss is the cornerstone and the burden lies on the applicant; James Wangalwa & Another v Agnes Naliaka Cheseto(Supra) held that execution does not amount to substantial loss; Absalom Dova v Tarbo Transporters(supra) and Butt v Rent Restriction Tribunal [1982] KLR 417 held that security alone cannot justify stay and discretion must be exercised judicially; while Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] eKLR and Kenya Power & Lighting Co. Ltd v Esther Wanjiru Wokabi [2014] eKLR held that a successful litigant must enjoy the fruits of judgment and litigation must come to an end. NAKURU CAUSE NO. E059 OF 2025 RULING 9 | P A G E 24. On the strength of these holdings, the Applicant/Respondent submitted that the application fails all statutory thresholds and should be dismissed with costs to allow execution to proceed. Analysis and determination 25.The court has considered the pleadings and rival submissions on the record; the issue for determination is whether the application for stay of execution is merited and should it be granted? 26. Order 9 Rule 9 of the Civil Procedure Rules provides as follows: “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court— (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” NAKURU CAUSE NO. E059 OF 2025 RULING 10 | P A G E 27. In Sospeter Mwangi Muchina v Lawrence Okoth & another [2021] KEHC 2287 (KLR), the court cited the case of S.K. Tarwadi v Veronica Muehlemann [2019] eKLR: - “… the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away.” 28.In this instant case, the Respondent/Applicant seeks leave to come on record, noting that they had not engaged their previous advocate. The Court observes that the proper avenue for the Respondent/Applicant to come on record is through a formal application or file a consent by the respective Advocates. The Counsel needed to tender proof that they served the first Counsel. Order 9 Rule 9 of Civil Procedure Rules (already cited) states clearly that all the parties must be notified of such a change of Advocates. In this case, there is no evidence of notification of the first Advocate Ndeda and Associates that he was to be replaced. It will be unfair to replace a Counsel without notifying him. The court therefore will not give NAKURU CAUSE NO. E059 OF 2025 RULING 11 | P A G E Omondi B.A and Associates Advocates leave to represent the Respondent/Judgment debtor unless they tender proof of having notified the first Counsel. The application vide Notice of Motion dated 26th February 2026 therefore fails. 29. Equally, the Counsel having no right to represent the Respondent/Judgment debtor for the reasons given cannot therefore be granted the application for stay of execution as in prayers No. 3 & 4 of his Notice of Motion as they are strangers to the suit. 30. In the circumstances, the court holds the Respondents/Applicants application dated 26th February 2026 fails and is dismissed accordingly. There will be no orders as to costs. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 22nd Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER NAKURU CAUSE NO. E059 OF 2025 RULING 12 | P A G E In 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 has 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. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE NAKURU CAUSE NO. E059 OF 2025 RULING 13 | P A G E JUDGE NAKURU CAUSE NO. E059 OF 2025 RULING 14 | P A G E