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ELRCDismissedApplication dated 13 September 2024 arising from Mombasa CMELRC E118 of 2020· [2025] KEELRC 2788 (KLR)

Mwaidza v Babito General Contractor & Suppliers Limited (Appeal E053 of 2023) [2025] KEELRC 2788 (KLR)

Employment and Labour Relations Court
16 October 2025
MMM. Mbarũ
964 words in judgment
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The bottom line

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A Kenyan employer lost its bid to delay paying an unfair termination award because it waited seven months, explained nothing, and offered no security.

What this practically means

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Executive summary

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The respondent, Babito General Contractors & Suppliers Limited, applied by notice dated 13 September 2024 for a stay of the taxation process and of the judgment delivered on 22 February 2024 in Mombasa CMELRC E118 of 2020, in which the court found the appellant's employment unfairly terminated and awarded compensation of Ksh. 18,880.57, notice pay of Ksh. 18,880.57, house allowance of Ksh. 101,025.45, underpayments of Ksh. 275,879, a certificate of service under Section 51 of the Employment Act, and costs, with each party bearing its own costs in the lower court. The respondent filed a Notice of Appeal contending the appellant absconded from duty and the termination was justified. In reply, the appellant's advocate, Caroline Mboku, argued the application failed the Order 42 Rule 6 threshold: no payment or offer to pay the decretal sum, no demonstration of substantial loss, inordinate unexplained delay, and no security offered. Framing a single issue for determination, the court applied the Order 42 Rule 6 conditions covering delay, its explanation, promptness, arguability of the appeal, and prejudice. It found the 7-month delay inordinate and unexplained, observed that grounds of appeal alone do not establish substantial loss, and noted that despite repeated adjournments to allow the respondent to agree on a security deposit, no offer or deposit was made. The court read this as unwillingness to deposit security. Dismissing the application with costs to the appellant, the court directed that taxation proceed before the Taxing Master. Judgment was delivered in open court at Mombasa on 16 October 2025 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the respondent satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application failed: the delay of over 7 months was inordinate and unexplained, substantial loss was not demonstrated, and no security was offered or deposited.

Reasoning

Judgment was delivered on 22 February 2024 but the application was only filed on 13 September 2024, a lapse the court found inordinate and unexplained. Grounds of appeal alone do not establish substantial loss. The hearing was repeatedly adjourned to allow the respondent to agree on a security deposit, but no offer or deposit was made, which the court read as unwillingness to comply with conditions. A valid judgment holder must be allowed to enjoy the fruits of judgment absent cogent reasons for a stay.

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy the Order 42 Rule 6 conditions; inordinate unexplained delay and failure to offer security defeat the application.
  • Merely setting out grounds of appeal is not sufficient to obtain a stay; the applicant must address the nature of the loss to be suffered.
  • The conditions for stay under Order 42 Rule 6 protect both the appellant's right of appeal and the respondent's enjoyment of the judgment.

Court orders

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  1. 1.The application dated 13 September 2024 is dismissed with costs to the appellant
  2. 2.Taxation to proceed before the Taxing Master

Authorities

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Legislation

  • Employment ActSection 51
  • Civil Procedure RulesOrder 42 Rule 6
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Mwaidza v Babito General Contractor & Suppliers Limited (Appeal E053 of 2023) [2025] KEELRC 2788 (KLR)", Case Analysis (2025). Application dated 13 September 2024 arising from Mombasa CMELRC E118 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2788/eng@2025-10-16

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