REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI
APPEAL NO. E414 OF 2025
Consolidated with
APPEAL No. E413 of 2025
and
APPEAL NO. E412 OF 2025
LEVI WABUYKA WEKESA……………………………...1ST APPELLANT
AND
JACOB OMUNE KENYATTA ……………………….….. 2ND APPELLANT
AND
TITUS WAFULA NYONGESA…………..…..…………... 3RD APPELLANT
-VERSUS-
ISMAX SECURITY LIMITED………………..……….……RESPONDENT
RULING
On 29 June 2026, the court delivered judgment consolidating the appeals under ELRCA E414 of 2025, including ELRCA E413 of 2025 and ELRCA E412 of 2025.
The Appellant, Ismax Security Limited, filed an application dated 13th July, 2026 under the provisions of Order 42 Rule 6 of the Civil Procedure Rules and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules seeking orders:
a) Spent.
b) Spent.
c) Pending the hearing and determination of the intended appeal to the Court of Appeal, there be a stay of execution of the judgment and decree delivered on 29 June 2026 in ELRCA No. 414 of 2025 (Consolidated with ELRCA No. E413 of 2025 and E412 of 2025).
d) The court be pleased to grant such further orders as it may deem fit and just.
e) Costs to abide the outcome of the intended appeal.
f) Orders issued herein to apply equally in ELRC Appeal No. E413 of 2025 and ELRC Appeal E412 of 2025.
The appellant filed the Supporting Affidavit of Mr. Yusuf Abdille, its Director, who avers that, following the Judgment herein, the appellant is dissatisfied and filed a Notice of Appeal. The intended appeal raises serious arguable questions of law concerning the court's jurisdiction to entertain and determine the matter, including claims founded on continuing injuries contrary to Section 89 of the Employment Act. Unless the court grants an order of stay of execution, the respondents are likely to proceed with execution and render the intended appeal nugatory.
Mr. Abdille avers in his affidavit, the appellant shall suffer substantial loss if execution proceeds before the appeal is heard. The application is filed without unreasonable delay, and that the appellant is willing to abide by such reasonable conditions as the court may deem necessary to secure the due performance of the decree.
The Respondent filed the Replying Affidavit of Mr. Levi Wambuyaka Wekesa, who avers that on 29th June, 2026 the court delivered Judgment and dismissed the appeal with costs. The court gave reasons for setting aside the trial court judgment and awarding compensation, notice pay, underpayments, leave pay, and costs. The respondent now seeks to re-litigate the same issues addressed in the matter in the intended appeal.
Mr. Wekesa avers that since the judgment, there has been no payment of the decretal sum. Whether the intended appeal has merit, is not within the jurisdiction of the court. He further avers that the applicant has not demonstrated any arguable appeal and that there is no compliance with Rule 5(2)(b) of the Court of Appeal Rules.
He further states that the Court has not addressed cogent reasons why a stay of execution is necessary. No security has been deposited to secure the due performance of the intended appeal. The balance of convenience favours the applicants, who have suffered loss and damage since the unfair termination of employment. The applicant has, on their part, not demonstrated the substantial loss to be suffered if the decretal sum is paid. The application should be dismissed with costs.
The respondents aver that the application is an attempt to delay justice and is premised on provisions of law that do not govern the reliefs sought. The assertions of substantial loss are unsupported by evidence, and despite offering security, the appellant has not demonstrated the loss; granting the order of stay will negate the judgment herein.
On the application, the parties filed written submissions.
The appellant submitted that the application is premised on Order 42 Rule 6 of the Civil Procedure Rules, which empowers the court to stay its decision pending appeal. The applicant must demonstrate sufficient cause, including sufficient grounds for appeal and the substantial loss to be suffered if the stay is not granted.
Under Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, a procedural framework governs the grant of orders staying execution. The ELRC Rules allow the court to apply the Civil Procedure Act and the rules thereto. To this extent, where justified, the court is guided by Article 159(2)(d) of the Constitution to address substantive issues rather than procedural technicalities.
The appellant submitted that it has satisfied the requirements for a stay of execution pending the hearing and determination of an appeal. The appellant has filed a draft Memorandum of Appeal raising serious questions of law. The application is filed without delay, and the appellant is willing to deposit reasonable security for the due performance of the decree herein.
The respondents submitted that the appellant has applied Rule 32 of the ELRC Rules, which is inapplicable in this case. Under Order 42 Rule 6 of the Civil Procedure Rules, an applicant must demonstrate that an appeal will be rendered nugatory if the order of stay is not allowed. In this case, there is no appeal, only an intention to file one; therefore, the requirements for a stay of execution are not satisfied. Such lapses cannot be cured through the provisions of Article 159(2) (d) of the Constitution.
There is no arguable appeal as alleged. The submissions that the appeal relates to the court's finding on continuing injury under section 89 of the Employment Act are only intended to delay the respondent from enjoying the fruits of the judgment.
The respondents submitted that the requirements for the substantial loss to be suffered if stay of execution is not granted are not addressed. Save to urge the court that the appellant is willing to deposit security, the loss to be suffered if stay is not granted is not demonstrated.
Determination
The Judgment herein was issued on 29th June, 2026 in favour of the respondents against the appellant. The court issued various orders in the consolidated appeals.
Upon the court's judgment, a dissatisfied party has the right to appeal under section 17 of the Employment and Labour Relations Court Act. The law provides for this right.Similarly, the party holding the decree has a legitimate expectation to enjoy its fruits.
Regarding the appellant's orders for a stay of execution, under Rule 34 of the ELRC Rules, as correctly submitted by the respondents, the Rule does not apply.
Under Rule 73 of the ELRC Rules, a party seeking a stay of execution of the court's orders may apply the Civil Procedure Act and the rules thereto.
Under these provisions, Order 42 Rule 6 of the Civil Procedure Rules applies. The principles governing stay of execution pending appeal are settled and crystallized under Order 42 Rule 6 of the Civil Procedure Rules:
a) Substantial loss may result to the applicant unless the order is made,
b) The application has been made without unreasonable delay, and
c) Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
Case law exists on these principles, including Hassan Mayende Shaban v Dorcas Nyakoa Injendi [2013] KEHC 4266 (KLR); Waweru & another v Msagha [2025] KEHC 6262 (KLR) and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR). The overriding principle is that the applicant must demonstrate the substantial loss to be suffered:
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, …
The appellant has filed a Notice of Appeal, but no appeal has been filed. None has been filed. The intention to file an appeal exists but has not been actualized. The intention is not the actual appeal.
The appellant has also not demonstrated what loss would be suffered if the order of stay of execution is not granted.
However, to balance the right of appeal and to secure the judgment herein, a conditional stay of execution must be issued. The offer to deposit security shall be conditional on the judgment sum in the consolidated appeals being deposited in court. If no appeal is filed and served within 30 days from the date hereof, lapsing on 4th December, 2026, the stay order shall lapse.
Accordingly, the application dated 13th July, 2026 is allowed on the condition that:
An order of stay of execution of the judgment delivered on 29th July, 2026 is hereby issued, on condition that the respondent shall deposit the judgment sum in the consolidated appeals in court within 30 days.
a) Where no appeal is filed or served within the same period, the order of stay shall lapse.
b) Costs of the application to the appellants.
Delivered in open court at Nairobi this 5th day of November 2026
M. MBARŨ
JUDGE