Musyimi v Kobian (Kenya) Limited [2025] KEELRC 1504 (KLR)

Musyimi v Kobian (Kenya) Limited (Employment and Labour Relations Cause 399 of 2018) [2025] KEELRC 1504 (KLR) (23 May 2025) (Ruling)

Neutral citation: [2025] KEELRC 1504 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 399 of 2018

JW Keli, J

May 23, 2025

Between

Makau Caxton Musyimi

Claimant

and

Kobian (Kenya) Limited

Respondent

Ruling

1. The Applicant vide Notice of Motion application dated 20th February 2025 brought under the provisions of Rules 21,47,45 and 72 Employment and Labour Relations Court (Procedure) Rules 2024 sought the following orders:-a.Spentb.Spentc.There be a stay of execution of the judgment delivered on 31/01/2025 pending the hearing and determination of the appeal herein.d.That the costs of this application be in the cause.e.Any other order may be made as this Honourable Court may deem fit.

2. The application was supported by the affidavit of Charandar Patel sworn on the 20th February 2025 where Copies of the Judgment of the court and the Notice of Appeal dated 6th February 2025 (CP1) and a draft memorandum of appeal (CP2) were annexed.

3. The grounds of the application were that the applicant had filed Notice of Appeal before the court as it awaits typed proceedings and the Decree so as to file appeal in the Court of Appeal against the Judgment of the court delivered on the 31st january 2025, that the appeal was arguable with chance of success, no other application for stay had been filed in another court, the respondent was ready and willing to provide security as may be ordered by the court, and that the Decree obtained exparte by the respondent was inconsistent with the judgment of the court.

4. The Respondent filed replying affidavit dated 3rd March 2025 in opposition to the application and contended that the judgment whose execution is sought to be stayed is a paltry Kshs. 431,100 which is not substantial given the applicant’s asset base and cash flow which is within the applicant’s knowledge. That the draft memorandum did not raise any meritorious grounds.

5. The respondent stated that he was a man of means capable of refunding the paltry 413,100 as he was a Certified Public Accountant currently working as a Finance Manager at Geminia Life Insurance earning a gross salary of Kshs. 558,849 hence capable of satisfying the decretal sum in event the proposed appeal was eventually successful. (CMM1-A was a copy of payslip of January 2025 and CMM2 were copies of Degree and CPA certificates). That the appeal had no merit and was aimed at further delay of the prolonged matter.

Decision 6. The application was canvassed by way of written submissions. Both parties complied. The issue for determination was whether the application was merited.

7. The Employment and Labour Relations Court (Procedure) Rules 2024 on stay of execution in case of appeal states:-“21. (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.’’ Since the Rules are silent on the conditions for granting stay then the lacuna is addressed by Order 42 Rule 6 (2) of the Civil Procedure Rules to wit:- ‘’(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.’’

8. The judgment in the instant case was delivered on the 31st January 2025. The Notice of Appeal was dated 6th February 2025. The application was filed on the 21st February 2025. The court was persuaded that this was not inordinate delay for purposes of seeking for stay of execution. The stay is on a money decree hence the likelihood of substantial loss is established. The court opines every coin has a value even if the award is paltry sum as contended by the Respondent compared to the asset base of the applicant. The applicant has offered to deposit security in performance of the decree. The Court of appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a Court should exercise discretion in an application for stay of execution and held that: -“1. the power of the Court to grant or refusal an application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle is granting or reusing a stay is: If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion. (sic) (trial Court judgement).3. A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the applicant at the end of the proceedings.4. The Court in exercising its powers under order XLI rule 4 (2) (b) of the civil procedure Rules can order security upon application by either party or on its own motion. Failure to put security of costs as ordered with cause the order for stay of execution to lapse”.

9. The Respondent stated in his affidavit that he was a man of means and produced his payslip with gross salary of Kshs, 558,849. 29. I have taken note of the submissions of the respondent. I uphold the decision of the Court of Appeal Butt v Rent Restriction Tribunal [1982] KLR 417 (supra) to apply in the instant case. It is the opinion of the court that failing to stay the proceedings would be prejudicial to the applicant in the event the appeal was successful, as it would then have to re-engage in litigation to pursue the executed decretal sum. The Respondent contended he was a man of means based on his pay slip. Employment is never guaranteed, the contract of service terms were not disclosed, and either party can terminate employment for whatever reason. The court had no control over the proceedings to be instituted to the Court of Appeal. The applicant has disputed the Decree as extracted. I reviewed the same and found the Decree was consistent to the judgment of the Court. For avoidance of doubt the respondent was awarded Kshs. 413,100(less statutory deduction of PAYE) with interest at court rate from date of filing suit until payment in full. Each party was ordered to bear its own costs.

10. In the upshot the application is allowed as follows:-a.The Court grants an Order of stay of execution in the Judgment of the Court dated 31/01/2025 pending the hearing and determination of the appeal herein on condition that the sum of Kshs. 413,100 is deposited within 30 days in a joint interest-earning bank account opened by Advocates for the parties on record and in default execution may proceed.b.Costs of the application to the respondent.

11. It is so Ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 23RD DAY OF MAY , 2025. J.W. KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant : Ogara h/b GathuRespondent/Claimant:- Mwinzi