Waecom Self Selection Limited v Simiyu (Appeal E037 of 2025) [2025] KEELRC 1822 (KLR)
The bottom line
#A Kenyan employment court let a company appeal late but only after depositing the full amount owed, showing delayed appeals come at a price.
What this practically means
#Executive summary
#Key legal issues
#Leave to file appeal out of time under Section 79G of the Civil Procedure Act and Rule 18 of the ELRC (Procedure) Rules 2024
Leave granted; the delay of 1 month and 12 days was explained to the satisfaction of the court and no prejudice would be suffered by the respondent
The court applied the Salat principles: length of delay, reason for delay, prejudice and undue delay in bringing the application. The delay was short, attributed to delayed availability of the judgment, office closure, and the resignation of the advocate with conduct of the matter without handover; the respondent would have ample opportunity to defend the appeal.
Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
Stay granted subject to deposit of the entire decretal sum; substantial loss shown because the respondent did not demonstrate ability to refund the decretal sum if the appeal succeeded
The court found the lacuna in the ELRC Rules 2024 on stay conditions is filled by Order 42 Rule 6(2). Execution had commenced, but relying on Century Oil Trading and National Industrial Credit Bank v Wasike, since the respondent did not demonstrate ability to repay, substantial loss was established. Application made without unreasonable delay; security condition imposed per Mitheu v Musau and Butt v Rent Restriction Tribunal.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party; the applicant bears the burden of explaining the delay to the satisfaction of the court (as restated from Nicholas Kiptoo Arap Korir Salat vs IEBC)
- Mere commencement of execution does not amount to substantial loss; the applicant must establish other factors
- Where a money decree is sought to be stayed, the court considers the financial positions of the parties; once an applicant shows a reasonable fear that the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent
- A stay must be granted where necessary to avoid rendering an appeal nugatory
Court orders
#- 1.Order of stay of execution of the Judgment dated 26th November 2024 pending the hearing and determination of the intended appeal, on condition that the Intended Appellant deposits the entire decretal sum in Court within 30 days of the Ruling; in default execution may proceed
- 2.Leave granted to the Appellant to file and serve the Memorandum of Appeal within 14 days of the Ruling; in default the appeal stands dismissed
- 3.Costs of the application to the respondent
- 4.Mention on 7th July 2025 to confirm compliance with the Orders and for further directions
- On appeal from
- Chief Magistrates' Court, Employment and Labour Division at Milimani
- MCELRC No. E2165 of 2022 - Omar Kusimba Simiyu vs Waecon Self Selection Service Limited
- Jurisdiction invoked
- Rule 18 of the Employment and Labour Relations Court (Procedure) Rules 2024; Sections 79G, 95, 3A of the Civil Procedure Act; Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waecom Self Selection Limited v Simiyu (Appeal E037 of 2025) [2025] KEELRC 1822 (KLR)", Case Analysis (2025). ELRC at Machakos, Notice of Motion dated 7th February 2025 arising from Milimani MCELRC No. E2165 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1822/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.