John Kosgei v Sisibo Tea Factory
The bottom line
#A Kenyan employer appealing an unfair termination award only got a conditional stay: it must pay part of the money now and secure the rest within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent has established sufficient grounds to warrant the grant of orders of stay of execution pending hearing and determination of its appeal
Key legal issues
#Whether stay of execution pending appeal was warranted
Stay granted on conditions: part payment to the Claimant and deposit of the balance in a joint interest-earning account, with liberty to execute in default
The Notice of Appeal was lodged within 12 days, satisfying the no-unreasonable-delay condition. However, the Applicant merely alleged prejudice and substantial harm without explaining their nature or extent. Since substantial loss was not demonstrated, the Claimant's ability to refund was not in issue. To be fair to both parties, the court conditioned stay on partial payment and security for the balance.
Whether the court could consider the arguability of the intended appeal
The court declined to assess the merits of the intended appeal, holding that such grounds fall to the Court of Appeal
The judge noted that the intended appeal is against her own decision and that the additional stay requirements applicable in the Court of Appeal (arguability and nugatory-ness) could only be considered if the application had been made there. She therefore confined herself to the Order 42 rule 6(2) conditions.
Whether parties' submissions should be considered despite non-compliance with rule 24(1) of the ELRC (Procedure) Rules, 2024
The court declined to consider the submissions as neither party supplied hard copies as required
Both parties filed submissions electronically but failed to furnish hard copies within seven days as required by rule 24(1). The court therefore determined the application on the application and replying affidavit alone.
Legal principles established
#- The burden of proving substantial loss and inability to refund the decretal sum lies on the applicant for stay; it does not shift to the decree-holder unless the applicant discharges that burden
- A notice of appeal lodged within 14 days of the decision constitutes lodgement without unreasonable delay for stay purposes
Court orders
#- 1.Stay of execution granted conditionally: the Respondent/Applicant to pay the Claimant Kshs. 368,400 (one month's pay in lieu of notice Kshs. 153,500, salary for February and 6 days worked in March 2024 Kshs. 184,200, and unpaid leave Kshs. 30,700) within 30 days
- 2.The Respondent to deposit the balance of the decretal sum of Kshs. 1,535,000 in a joint interest-earning account in the joint names of counsel for the parties within 30 days
- 3.In default, the Claimant/Decree-Holder at liberty to execute the decree
- 4.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Order 42 rule 6(2) of the Civil Procedure Rules
Relief refused
#Unconditional stay of execution of the judgment and decree pending appeal
Applicant did not demonstrate the nature or extent of substantial loss or prejudice; stay granted only on conditions
Costs
Each party shall bear its own costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Respondent/Applicant shall pay to the Claimant the sum of Kshs. 368,400 comprising the awards in respect of one months’ pay in lieu of notice, Kshs. 153,500, salary for February and 6 days worked in March, 2024, Kshs. 184,200 and unpaid leave Kshs. 30,700 within 30 days.
The Respondent shall deposit the balance of the decretal sum being Kshs. 1,535,000 in a joint interest earning account in the joint names of counsel for the parties herein within 30 days.
In default the Claimant/Decree-Holder shall be at liberty to execute the decree.
The Applicant has an obligation to demonstrate that it would suffer prejudice while at the same time the Claimant has to demonstrate ability to pay, where such ability is questioned. Both parties failed to demonstrate the same.
In view of the orders made above, each party shall bear its costs of the application.
Issues in the judgment
#Application date stated inconsistently as 22nd January 2026 and 22nd November 2026
Quoted authorities contain extraneous text from a different court file (Eldoret HCCA E047 of 2026)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kosgei v Sisibo Tea Factory", Case Analysis (2026). ELRC Cause No. E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2717/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.