Kenya National Private Security Workers Union v Wells Fargo Security Limited (Cause E016 of 2024) [2025] KEELRC 3767 (KLR)

c. Upon delivery of the judgment, the court issued an order staying execution for 30 days to allow the parties peruse the judgment and to take further instructions. The stay shall lapse on 20th July 2025. d. The respondent is apprehensive that, upon the lapse of the stay of execution on 20th July 2025,the claimant will execute the decree of the court thereby causing substantial loss to the respondent. e. The grievant's means and sources of income are unknown to the respondent. During the hearing, the grievant testified that he is unemployed and has no source of income. The respondent is apprehensive that the grievant will not be able to repay the decretal sum should it be paid to him. The respondent therefore stands to sufier irreparable financial loss. f. The respondent is a reputable company with known registered addresses and ofices and therefore, should the appeal fail, the grievant will sufier no prejudice as he will be able to recover the decretal sum. g. The respondent is willing to abide by the conditions regarding furnishing of security. h. It is in the interest of justice that the orders sought herein be granted. 3. The Application is further supported by the afidavit of Diana Matara, the Legal Assistant of the Respondent in which she reiterated the grounds on the face of the application. 4. The Respondent opposed the application through a replying afidavit of Peter Odima, the Eldoret Branch Secretary of the Claimant in charge of the North Rift Region who deposes that he is well versed in the facts and circumstances of the instant suit. 5. In the Replying Afidavit sworn on 10th September, 2025, Mr. Odima deposes that the application is incompetent, an abuse of court process and without merit. He deposes that the Applicant has not provided suficient cause for grant of the orders of stay of execution. 6. According to the afiant, there was no error in the judgment as all pleadings were considered before the verdict was reached, that before the matter came to court it went through the dispute resolution mechanism but there was not consensus. 7. Mr. Odima deposes that the Respondent will not sufier any substantial loss, that the intended appeal has no chance of success and that the Respondent is hell bent on ensuring the Grievant does not enjoy the benefits of belonging to a trade union through CBA. 8. The application was disposed of by way of written submissions. 9. The Applicant in its submissions dated 6th August, 2025 relies on Order 42 Rule 6(2) of the Civil Procedure Rules and submits that in the absence of any compelling reasons a stay of execution ought to be granted to preserve the subject matter of appeal. The Respondent relies on the decision of the Court of Appeal in Butt v Rent Tribunal where the court observed: “ If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory … the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory.” 10. It is submitted that the factors to be considered by the court in determining an application for stay of execution pending appeal were also set out in the Court of Appeal decision in Halai & another v Thornton and Turpin (1963) Ltd [1990] KECA 65 to be: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3767/eng@2025-12-11 2

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a. The court must be satisfied that substantial loss would ensue from a refusal to grant the stay of execution b. The application must be made without unreasonable delay c. The applicant must furnish security d. The applicant must establish suficient cause 11. On substantial loss it is submitted that during the hearing the Grievant stated he is unemployed and has no stable source of income. That the Grievant’s means and assets are unknown and his ability to refund the judgment sum should the intended appeal succeed has not been demonstrated. 12. The Respondent relies on The Court of Appeal (Omolo, O’Kubasu & Githinji JJA) in National Industrial Credit Bank Ltd Vs Aquinas Francis Wasike & Another (2006) eKLR held that: “ Once an Applicant expresses a reasonable fact that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.” 13. It is submitted that the Respondent will sufier substantial loss should the appeal succeed as it will experience dificulty in recovering the money paid in the satisfaction of the judgment and decree of the court. 14. It is further submitted that the judgment sum is substantial considering the grievant's current employment status, and there is no doubt that the respondent would sufier substantial loss should the appeal succeed in the absence of a stay of execution of this court’s judgment. 15. The Applicant further relied on the decision of Rayola J in Matata & another y Rono & another (Civil Appeal E034 of 2024) (2024] KEHC 2799 (KLR) (19 March 2024) (Ruling) where he held as follows on how substantial loss should be understood in the context of execution: “ The word ‘substantial’ cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay ofexecution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to or difierent from that... ". 16. It is submitted that the fact that the judgment is for a money decree does not, in itself, divest the court of its discretion to grant a stay of execution. That a money decree does not eliminate the risk of substantial loss, relying on the Court of Appeal decision (Visram, Koome & Mwilu JJA) in Housing Finance Company of Kenya v Sharok Kher Mobamed Ali Hirji & Another [2015] KECA 447 (KLR), where the court held that: “ ...the amount due as sought in the warrants of attachment and sale of property in execution of the decree is Shs.722, 581, 646.60. This is a colossal sum and there is reasonable apprehension as to the ability of the 1 respondent to repay the same in the event that the appeal is successful as no material is availed in proof thereof... The decree is a money decree and normally the courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the court ascertains that the respondent is not a “man ofstraw” but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant. However, with https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3767/eng@2025-12-11 3

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time, it became necessary to put certain riders to that legal position as it became obvious that in certain cases, undue hardship would be caused to the applicants if stay is refused purely on grounds that the decree is a money decree”. 17. On unreasonable delay the Respondent submitted that judgment was delivered on 20th June, 2025 and the application for stay was filed on 15th July, 2025, less than a month after the judgment date and the application has therefore been made within a reasonable time and the issue of delay does not arise relying on the decision in Absolom Oluchina v Joseph Wagukhu (2016] KEHC 7202 (KLR) where Mwita J. held that there is no undue delay where an application for stay was brought within a month. 18. On security the Applicant submitted that it is willing to deposit the decretal sum in a joint interest earning account in the names of the parties’ representatives. That the application for stay of execution has been brought in good faith as the Respondent is desirous of preserving the judgment sum pending the determination of its intended appeal. That Gitari J in Focin Motorcycle Co. Limited versus Ann Wambui Wangui & another [2018] eKLR held: “ Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is suficient for the applicant to state that he is ready to provide security or to propose the kind of security, but it is the discretion of the Court to determine the security.” 19. It was the Respondent’s submissions that it will be fair in the circumstances of this case if the Respondent is allowed to deposit half of the decretal sum in a joint interest earning account. 20. On suficient cause the Respondent relied on the decision in Edward Kamau & another v Hannah Mukui Gichuki & another (2015) where the court held: “ The right of appeal, it has been held time and again, is a Constitutional right which is the cornerstone of the rule of law. To deny a party that right, would in essence be denying them access to justice which is guaranteed under Article 48 of the Constitution and also a denial of a right to a fair hearing guaranteed under Article 50 (1) of the Constitution which latter right cannot be limited under Article 25 of the said Constitution.” 21. The Respondent submitted that whereas the Claimant has the right to enjoy the fruits of the judgment, that right can be secured by the provision of security for the decretal sum. That the Respondent has demonstrated that it is willing and ready to provide this security. 22. For the Claimant it is submitted that the Respondent has not satisfied the conditions in Order 42 Rule 6 of the Civil Procedure Rules and the case of Machira t/a Machira & Co. Advocates v East African Standard (N0. 2). 23. The Claimant submits that the issues raised in the Memorandum of Appeal are frivolous and therefore not arguable, that the appeal is an afterthought, that the Respondent has not tendered compelling reasons. 24. The Claimant submits that the rights of the Respondent must be balanced with those of the Claimant, relying on the decision in Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR where the court stated: “ The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3767/eng@2025-12-11 4

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in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a Successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima face entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive Conclusion.” 25. The Claimant submits that litigation must come to an end as was observed by the Supreme Court in Kenya Revenue Authority v Habimana and Sued Hemed & Another [2017] eKLR. 26. The Claimant submits that the Respondent will not sufier any substantial loss, thus no stay of execution should be granted since parties had ample time to negotiate in their own terms but the Respondent frustrated every efiort from the conciliation level. 27. That the Respondent is hell bent in ensuring that its employee do not enjoy the benefits of belonging to a Trade Union through the CBA. 28. On costs the Claimant submits that the right of appeal must be balanced against an equally weighty rigid right of the Claimant to enjoy the fruits of the judgment delivered in its favour. That in the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR the court stated: “ The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a Successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima face entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive Conclusion.” Determination 29. I have considered the pleadings and the submissions filed by the parties. The only issue for determination is whether the Respondent has justified the grant of orders of stay of execution pending appeal. 30. Order 42 Rule 6(2) of the Civil Procedure Rules provides for stay of execution pending appeal as follows: “ (2) 31. No order for stay of execution shall be made under sub rule 1) unless— 1. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and, 2. such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” Filing an appeal is a right of every party to a suit in the realization of the wider right to fair hearing enshrined in Article 50 of the Constitution of Kenya 2010. However, Order 42 Rule 6 provides that such right is exercisable subject to the appellant providing security for the due performance of such decree. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3767/eng@2025-12-11 5

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32. The Applicant avers that it is likely to sufier irreparable loss as the Grievant has no known source of income, that should the appeal succeed it is doubtful that the Grievant would be in a position to refund the decretal sum should it be paid to him, that it would thus sufier substantial loss. 33. I am satisfied that the Respondent is deserving of the orders sought in its application dated 15th July 2025 having demonstrated that the Grievant may not be in a position to refund the decretal sum if paid to him should the intended appeal succeed. It has ofiered to deposit the decretal sum as security. 34. For the forgoing reasons I will grant stay of execution conditional upon the Respondent depositing the entire decretal sum in court within 30 days. 35. The costs of this application shall abide the outcome of the appeal. DATED, SIGNED AND VIRTUALLY AT ELDORET ON THIS 11TH DAY OF DECEMBER, 2025 MAUREEN ONYANGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3767/eng@2025-12-11 6

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