Vishva Builders Limited v Musindalo (Appeal E002 of 2020) [2025] KEELRC 1768 (KLR)
The bottom line
#The ELRC refused to pause an employment judgment debt, confirming that winning parties are entitled to their money while appealing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to entertain a stay of execution application pending appeal to the Court of Appeal
The preliminary objection fails; Rule 21(2) of the ELRC (Procedure) Rules, 2024 applies to internal ELRC appeals, while appeals to the Court of Appeal are governed by Rule 5 of the Court of Appeal Rules and Order 42 Rule 6 of the Civil Procedure Rules, under which the court appealed from may grant stay
The court construed Rule 21(2) as confined to appeals filed within the ELRC (Part III, rules 11-22), intended to keep the stay application in the same file as the internal appeal. Appeals from the ELRC to the Court of Appeal are instead governed by Rule 5(2)(b) of the Court of Appeal Rules, and Order 42 Rule 6(1) expressly empowers the court appealed from to order stay for sufficient cause. The court therefore found no merit in the objection.
Whether the prerequisites for stay of execution pending appeal were met
The stay application failed: the appeal was against a money decree, the Applicant did not demonstrate substantial loss or that the appeal would be rendered nugatory, did not disclose its intended grounds of appeal, and had already enjoyed stay throughout the first appeal
Applying Order 42 Rule 6(2) and Rule 5 of the Court of Appeal Rules, the court noted the notice of appeal was lodged in time (5th to 18th December 2024, within 14 days). However, whether the appeal was arguable was for the Court of Appeal. The Respondent's means alone could not justify staying a money decree, and the Applicant had to show prejudice incapable of monetary compensation, which it did not.
Legal principles established
#- Rule 21(2) of the ELRC (Procedure) Rules, 2024 governs stay applications in appeals filed within the ELRC, not appeals from the ELRC to the Court of Appeal; applications for stay pending appeal to the Court of Appeal fall under Rule 5 of the Court of Appeal Rules, so the ELRC retains jurisdiction to hear such an application in the first instance
- It is for the appellate court, not the court appealed from, to determine whether an appeal is arguable; a stay may only issue where a notice of appeal has been lodged within 14 days under Rule 75 of the Court of Appeal Rules
- The mere poverty of a decree holder is not a ground to stay execution of a money decree; the right of appeal must be balanced against the successful party's right to enjoy the fruits of the judgment
Court orders
#- 1.The preliminary objection by the Respondent is dismissed
- 2.The application dated 14th January, 2025 is dismissed with costs
- On appeal from
- Magistrates' Court (Eldoret CMELRC)
- Eldoret CMELRC Cause No. 159 of 2019
- Jurisdiction invoked
- Articles 22, 48 and 50(1) of the Constitution of Kenya, 2010; Section 13 of the Employment and Labour Relations Court Act; Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vishva Builders Limited v Musindalo (Appeal E002 of 2020) [2025] KEELRC 1768 (KLR)", Case Analysis (2025). Eldoret CMELRC Appeal - application dated 14th January, 2025 arising from Eldoret CMELRC Cause No. 159 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1768/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.