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ELRCPartially AllowedELRC Cause at Eldoret (application dated 22nd January 2025; judgment in the cause delivered 19th December 2024)· [2025] KEELRC 1762 (KLR)

Kenya Union of Commercial Food and Allied Workers v Aksher Hardware Limited (Cause E009 of 2023) [2025] KEELRC 1762 (KLR)

Employment and Labour Relations Court
13 June 2025
MOMaureen Onyango
2,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court paused execution of the judgment against the company, but only on condition it deposits the full decretal sum in court within 30 days.

What this practically means

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Executive summary

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This is a ruling by the Employment and Labour Relations Court at Eldoret (Maureen Onyango, J) on a notice of motion dated 22nd January 2025 brought by the Applicant (a company whose director, Panda Dillip, swore the supporting affidavits) under Order 42 rule 6 of the Civil Procedure Rules and Rule 8 of the ELRC (Procedure) Rules, 2016, seeking stay of execution of the judgment delivered on 19th December 2024 and dated 16th January 2025, pending an intended appeal to the Court of Appeal. The Respondent/Claimant (a union, through its Eldoret Branch Secretary Rogers Momanyi Ombati) opposed the application as incompetent, an abuse of process and lacking compelling grounds, and sought that any stay be conditional on deposit of the decretal sum. The court framed two issues: whether stay should issue, and costs. Applying Order 42 rule 6(2) and the Court of Appeal principles in Principal Secretary, Ministry of Education v KUPPET, the court found the appeal was not frivolous; that the Notice of Appeal filed on 20th January 2025 was within time once the Christmas vacation was excluded under Rule 4 of the Court of Appeal Rules; and that the unrebutted averment that the Grievant is a person of straw established risk of substantial loss. Stay was granted in terms of prayer (c), conditional on the Applicant depositing the entire decretal sum in court within 30 days, failing which execution may issue. Costs of the application were nevertheless awarded against the Applicant.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 rule 6(2) were met

Holding

The court found an arguable appeal, no unreasonable delay (Christmas vacation excluded under Rule 4), and unrebutted averments that the Grievant is a person of straw, and granted a conditional stay.

Reasoning

The court applied Order 42 rule 6(2) and the Court of Appeal principles in Principal Secretary, Ministry of Education v KUPPET. It found the grounds of appeal raised issues warranting consideration by the appellate court. On substantial loss, the Claimant did not rebut the averment that the Grievant may not refund the decretal sum if paid. Timeliness was computed excluding the Christmas vacation. Stay was granted on condition that the decretal sum be deposited in court within 30 days.

p. 6
02

Timeliness of the application and Notice of Appeal

Holding

The Notice of Appeal lodged on 20th January 2025 was within time when the Christmas vacation (21st December 2024 to 13th January 2025) was excluded per Rule 4 of the Court of Appeal Rules.

Reasoning

The court noted judgment was delivered on 19th December 2024 and the Christmas vacation ran from 21st December 2024 to 13th January 2025. Applying Rule 4 of the Court of Appeal Rules, which excludes the Christmas vacation in computing time, the Notice of Appeal filed on 20th January 2025 fell within the 14-day period under Rule 75.

p. 5

Legal principles established

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  • An applicant for stay pending appeal must satisfy both substantial loss/nugatory-appeal and arguable-appeal principles; satisfying only one is insufficient
  • An arguable appeal need not be one that will necessarily succeed; it is one that is not frivolous
  • In appeals to the Court of Appeal, stay of execution may only be granted where a notice of appeal has been filed

Court orders

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  1. 1.Stay of execution of the judgment delivered on 19th December 2024 and dated 16th January 2025 together with any consequential orders, pending hearing and determination of the intended appeal by the Applicant
  2. 2.The stay is conditional upon the Applicant depositing the entire decretal sum in court within 30 days, failing which the Respondent/Claimant will be at liberty to execute
  3. 3.Costs of the application to be borne by the Applicant
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Kenya Union of Commercial Food and Allied Workers v Aksher Hardware Limited (Cause E009 of 2023) [2025] KEELRC 1762 (KLR)", Case Analysis (2025). ELRC Cause at Eldoret (application dated 22nd January 2025; judgment in the cause delivered 19th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1762/eng@2025-06-13

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