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ELRCAllowedNotice of motion dated 28th November 2024 in ELRC cause at Kakamega (judgment of 7th November 2024)· [2025] KEELRC 1672 (KLR)

Mikisi & 55 others v Butali Sugar Mills Limited & another (Cause 10 of 2023) [2025] KEELRC 1672 (KLR)

Employment and Labour Relations Court
5 June 2025
3,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 28th November 2024 in which the applicant (the 1st respondent, a former employer) sought a stay of execution of a judgment delivered by Keli J on 7th November 2024, in which 52 claimants were each awarded accrued leave, service pay, salary underpayment, certificate of service, costs and interest. The applicant intended to appeal to the Court of Appeal and argued it would suffer substantial loss since the claimants had not demonstrated ability to refund the decretal sums, the application was filed without delay, and it was willing to furnish security. The claimants opposed, arguing defective competence, inordinate delay, material non-disclosure, failure to annex a draft memorandum of appeal, and failure to serve the notice of appeal and request for proceedings. The 2nd respondent did not oppose. The single issue was whether the threshold in Order 42 Rule 6(2) of the Civil Procedure Rules was met. Applying the overriding objective and the Butt v Rent Restriction Tribunal principles, the court found substantial loss possible because the claimants filed no affidavit of means once ability to refund was questioned; found no inordinate delay (application filed 21 days after judgment); and held that the merits or competency of the intended appeal could not be determined at this stage. The court allowed the application conditionally: stay of execution pending appeal, subject to the applicant depositing Kshs500,000 in court within 30 days, failing which the stay lapses. Costs of the application abide the appeal.

Key legal issues

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01

Substantial loss

Holding

Substantial loss may occur and the appeal rendered nugatory if stay is denied, since claimants did not demonstrate ability to refund the decretal sums.

Reasoning

The applicant deponed it would suffer substantial loss if over 50 claimants executed for the award. The claimants filed no affidavit of means showing they could refund the decretal sum should the appeal succeed. Once inability to refund was raised, the burden lay on the claimants to demonstrate their sources of income, which they failed to do.

p. 6
02

Delay

Holding

Filing the application 21 days after judgment and the notice of appeal 14 days after judgment was not inordinate delay.

Reasoning

The judgment was delivered on 7th November 2024, the notice of appeal lodged 14 days later, and the application filed 21 days after judgment with no execution commenced in the interim. Stay only delays enjoyment of the judgment; delay is not denial.

p. 7
03

Arguability of the appeal and security

Holding

The merits and competency of the intended appeal cannot be determined on a stay application; the applicant's willingness to furnish security supported the grant.

Reasoning

The claimants argued no memorandum of appeal was attached and the appeal lost. The court held the merits and competency of an intended Court of Appeal appeal can only be argued at the hearing of that appeal, not before it. The applicant offered to comply with any security conditions, and conditional security of Kshs500,000 was imposed.

p. 7

Legal principles established

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  • Substantial loss is the cornerstone of stay of execution; mere execution does not amount to substantial loss
  • Once inability to refund the decretal sum is raised, the burden shifts to decree holders to demonstrate their financial ability to refund
  • Stay orders delay rather than extinguish enjoyment of judgment; this court cannot determine the merits of an intended appeal

Court orders

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  1. 1.The application dated 28th November, 2024 is merited and is hereby allowed upon the applicant meeting the condition in (b) hereunder.
  2. 2.The applicant shall within 30 days of this ruling deposit a sum of Kshs500,000/= with the court as security.
  3. 3.In default of (b) above, the order for stay shall expire and lapse.
  4. 4.Costs of the application shall abide with the appeal.
Jurisdiction invoked
Sections 3, 17 & 20 of the Employment and Labour Relations Court Act; Rules 21(1), 44, 45, 47, 54 & 68 of the ELRC (Procedure) Rules, 2024; Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mikisi & 55 others v Butali Sugar Mills Limited & another (Cause 10 of 2023) [2025] KEELRC 1672 (KLR)", Case Analysis (2025). Notice of motion dated 28th November 2024 in ELRC cause at Kakamega (judgment of 7th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1672/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.