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ELRCDismissedEldoret CMELRC Appeal - application dated 14th January, 2025 arising from Eldoret CMELRC Cause No. 159 of 2019· [2025] KEELRC 1768 (KLR)

Vishva Builders Limited v Musindalo (Appeal E002 of 2020) [2025] KEELRC 1768 (KLR)

Employment and Labour Relations Court
13 June 2025
4,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The ELRC refused to pause an employment judgment debt, confirming that winning parties are entitled to their money while appealing.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret (Maureen Onyango, J) determines the Applicant's notice of motion dated 14th January 2025 seeking stay of execution of the decree in Eldoret CMELRC Cause No. 159 of 2019 following the dismissal of the Applicant's appeal on 5th December 2024, pending a further appeal to the Court of Appeal. The Respondent filed a replying affidavit and a preliminary objection contending that under Rule 21(2) of the ELRC (Procedure) Rules, 2024 and Rule 5(2)(b) of the Court of Appeal Rules, the ELRC lacked jurisdiction, being functus officio once a notice of appeal was lodged. The court framed three issues: the preliminary objection, the merits of the stay, and costs. On jurisdiction, it held that Rule 21(2) applies only to appeals within the ELRC, 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, which empower the court appealed from to grant stay; the objection was dismissed. On the merits, applying Order 42 Rule 6(2) and the arguability/nugatory principles, the court held that arguability is for the appellate court; that the notice of appeal was lodged within the 14-day period under Rule 75; but that this being a money decree, the Applicant failed to demonstrate substantial loss or that the appeal would be rendered nugatory, having already enjoyed stay during the first appeal and having disclosed no grounds of appeal. The application was dismissed with costs to the Respondent on 13th June 2025.

Key legal issues

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01

Jurisdiction of the ELRC to entertain a stay of execution application pending appeal to the Court of Appeal

Holding

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

Reasoning

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.

p. 7
02

Whether the prerequisites for stay of execution pending appeal were met

Holding

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

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The preliminary objection by the Respondent is dismissed
  2. 2.The application dated 14th January, 2025 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 48, 50(1), 164(3)(a)
  • Employment and Labour Relations Court ActSection 13
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 21(1) and (2), 73(2)
  • Civil Procedure Rules, 2010Order 42 Rules 6(1) and 6(2)
  • Court of Appeal RulesRules 4, 5(1) and 5(2)(b), 42, 75, 82, 84, 97
  • Civil Procedure Actrules made thereunder (enforcement)

Cases cited (23)

  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018]
  • Arun Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
    Nairobi Civil Application No. 6 of 1979
  • Kamau v Kamau
    [1984] KLR 529
  • Equity Bank Limited v West Link MBO Limited
    [2013] eKLR
  • Chris Munga N. Bichange v Richard Nyagaka Tong'I & 2 others
    [2013] eKLR
  • Vishram Ravji Halai Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 (KLR)
  • James Wangalwa & another v Agness Naliaka Cheseto
    High Court Misc. App. No. 42 of 2012
  • Machira t/a Machira & Co. Advocates v East African Standard (No. 2)
  • Equity Bank Limited v Taiga Adams Company Limited
    2006 eKLR
  • Kenya Shell Limited v Kibiru
    (1986) KLR
  • Mohammed Salim t/a Choice Butchery v Nasserpuria Memon Jamat
    [2015] KEHC 3136 (KLR)
  • M/S Port Reitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Kenya Hotel Properties Limited v Willesden Properties Limited
    Civil Application No. Nai. 322 of 2006 (UR)
  • Rono Cheruiyot v SBI International Holdings (AG) Ltd
    [2020] eKLR
  • Celestine Chemutai v Kaimosi Tea Estates Limited
    [2021] eKLR
  • Gianfranco Mannthi & another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • Kosmas Kipkoech Sigei v Madrugada Ltd & another
    [2010] eKLR
  • Principal Secretary, Ministry of Education, Department of Vocational & Technical Training & another v Kenya Union of Post Primary Education Teachers (KUPPET) & 2 others
    (Civil Application E248 of 2022) [2024] KECA 683 (KLR) (14 June 2024) (Ruling)
  • Stanley Kangethe Kinyanjui v. Tony Ketter & Others
    [2013] eKLR
  • Republic v. Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Kenya Tea Growers Association & Another v. Kenya Plantation & Agricultural Workers Union
    Civil Application No. Nai. 72 of 2001
  • Ahmed Musa Ismael v. Kumba Ole Ntamorua & 4 Others
    [2014] eKLR
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

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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, "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.