Abyssinia Iron Steel Limited v Zephania Azore Amanya

b. THAT there be a Temporary Stay of Execution of the ruling/judgment in Mavoko MCELRC NO. E-070 of 2022 Zephania Azore Amanya-VS- Abyssinia Iron Steel Limited pending inter partes hearing of this application. THAT execution has already been reinstated and Warrants of Attachment for sale are liable to issue. c. THAT the Appellant's property had previously been proclaimed and the Respondent is pursuing execution. Unless heard urgently, the appeal shall be rendered nugatory. Copies of a letter requesting for re-issuance of Warrants are herein annexed and marked "RA-1". d. THAT the court be pleased to order stay of execution of the ruling/judgment and decree delivered on 23rd December 2024 in Mavoko MCELRC NO. E070 of 2022 -Zephania Azore Amanya -V- Abyssinia Iron Steel Limited pending the hearing and determination of this appeal against the same. e. THAT the costs of this application be in the cause. Grounds of the application 2. The Appellant has an arguable appeal. 3. Execution is imminent. 4. The Appellant is apprehensive that if the Respondent proceeds with execution, it will suffer substantial loss unless stay is granted. RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 2|Page

page 2 of 10

5. The Appellant's property had previously been proclaimed, and the Respondent is pursuing execution. Unless heard urgently, the appeal will thus be rendered nugatory. 6. The Appellant is willing and ready to furnish security by depositing the decretal sum in an interest earning account to be opened in the joint names of the Appellant's and the Respondent's Advocates on record or securing the same in any other manner directed by the court. 7. The application was supported by the affidavit of Ravi Gada sworn on the 2nd June 2026. 8. The application was opposed by the respondent vide replying affidavit of Wincate Muthoni Mwangi, the respondent’s advocate, sworn on the 9 th June 2026. The facts of the response were as follows- 9. THAT the Applicant's Application is misconceived, incompetent, devoid of merit and amounts to a gross abuse of the court process intended solely to delay and frustrate enjoyment of the fruits of a lawful judgment awarded to the Respondent after a full trial before a court of competent jurisdiction. 10. THAT the judgment and decree sought to be stayed arose from proceedings in Mavoko MCELRC No. E070 of 2022, wherein the Applicant was accorded every opportunity to participate in the proceedings but RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 3|Page

page 3 of 10

failed and/or neglected to do so. (Attached and marked as WMM-1 is a copy of the judgment dated 23rd December, 2024) 11. THAT the matter proceeded undefended due to the Applicant's own indolence and failure to file and prosecute its defence despite being afforded sufficient opportunity by the trial court. 12. THAT after judgment was delivered, the Applicant moved the trial court seeking to set aside the judgment and was granted an opportunity to do so subject to conditions imposed by the court. (Attached and marked as WMM-2 is a copy of the ruling dated 13th November, 2025. 13. THAT despite the court exercising its discretion in favour of the Appellant, the Appellant failed and/or neglected to comply with the conditions set by the trial court within the stipulated timelines. The condition was for the Appellant to pay throw away costs and file their response within 14 days which they failed to do so. 14. THAT having failed to comply with the conditions imposed by the trial court, the Applicant filed another application seeking stay of execution on 21st January, 2026 and when the application was not certified urgent by the Honourable Barbra Ojoo, they refiled another application dated 23rd January 2026 seeking for the same orders as the previous application knowing that the application would be heard by a different Judicial officer. Here they obtained orders but we challenged the RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 4|Page

page 4 of 10

said orders and informed the court of their forum shopping. (Attached and marked as WMM-3 are copies of the CTS entries and the said applications) 15. THAT having failed to comply with the conditions imposed by the trial court, the Applicant cannot now seek refuge before this Honourable Court and blame the Respondent for the consequences of its own conduct. 16. THAT the Applicant's current predicament is entirely self-inflicted and arises from its deliberate failure to comply with lawful court orders and has further failed to disclose material facts in their application. 17. THAT it is dishonest and misleading for the Applicant to allege that execution is unfair or prejudicial when the execution process is a direct consequence of a valid decree lawfully obtained after the Applicant failed to prosecute its case and subsequently failed to comply with the court's conditions for setting aside. 18. THAT the intended appeal does not raise any arguable or serious issues warranting the intervention of this Honourable Court. 19. THAT the Applicant has not demonstrated any sufficient cause, substantial loss or exceptional circumstances to justify the grant of stay of execution. 20. THAT the Applicant has not offered any security for the due performance of the decree as required by law. 16. THAT the Application is RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 5|Page

page 5 of 10

merely intended to delay the execution process and deny me the fruits of my judgment which I have waited for over a considerable period of time. 21. THAT it is noteworthy that the Applicant is effectively seeking to appeal and challenge consequences arising from its own failure to prosecute its defence and its own failure to comply with the trial court's orders. 22. THAT this Honourable Court should not aid a litigant who has consistently disregarded court processes and timelines and who now seeks equitable relief while approaching the court with unclean hands. 23. THAT litigation must come to an end and the Applicant should not be allowed to perpetually delay the conclusion of this matter through unmeritorious applications. 24. THAT that the Applicant's Application offends the principles governing stay of execution pending appeal the court ought to consider before granting the stay primarily: In that a stay ought to be granted so that an appeal, if successful, may not be rendered nugatory; The court must be satisfied that if no stay is granted, substantial loss may result to the applicant. This is not the case here; The application has been made without unreasonable delay, and such security as the court orders for the due performance of the decree has been given; The court should weigh RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 6|Page

page 6 of 10

this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. Decision 25. The application was canvassed by way of written submissions. Both parties filed. Whether the application for a stay of execution is merited 26. The Employment and Labour Relations Court (Procedure) Rules 2024 on stay of execution pending appeal Rule states: ’21. (1) Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court. (2) An application for stay of execution pending appeal shall be filed in the appeal file.’ 27. Since the Court Rules are silent on the conditions for granting stay then the lacuna is addressed by Order 42 Rule 6 (2) of the Civil Procedure Rules to wit:’(2) No order for stay of execution shall be made under subrule (1) unless— RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 7|Page

page 7 of 10

(a) 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 (b) 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.’’ 28. The parties relied on several authorities which the court noted were consistent with the decision in Butt -vs Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal(Madan J.A) gave guidance on how a Court should exercise discretion in an application for a stay of execution, as follows: ’If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings. It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that 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, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 8|Page

page 8 of 10

454 at p 459. In the same case, Cotton LJ said at p 458: “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.” 29. On perusal of the memorandum of appeal, I find arguable points are raised. The grant of service pay when the respondent is alleged to have been under NSSF is an arguable point. The burden of proof of overtime is challenged, and the same was awarded for the period of service. The payable salary is also in issue. 30. The appeal was filed within the statutory period of filing appeals from the magistrate court of 30 days. (Rule 12 of ELRC rules, 2024)The application was brought without delay. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. Discretion should be exercised so as not to prevent an appeal (Butt, supra). The risk of the appeal being rendered nugatory in the instant case was proved, as the Respondent did not rebut the applicant's assertion that he was not capable of refunding the decretal amount in the event the appellant was successful on appeal. 31. In the instant case, the applicant is willing to deposit the decretal sum in a joint interest-earning account. I find the applicant's case merited as it meets the criteria under Order 46(2) of the Civil Procedure Rules. RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 9|Page

page 9 of 10

Disposition 32. The application is merited and the court exercises its discretion in favour of the applicant as follows:a. That pending the hearing and determination of this the appeal herein, the Honourable Court is pleased to issue order of stay of execution of the judgement delivered in Mavoko Magistrate Court on 23 rd December 2024 on condition the decretal amount is deposited in joint interest-earning account within 45 days of this order in default, the stay is to lapse. b. The record of appeal be filed within 45 days. c. Costs in the cause. 33. It is so Ordered. 34. Mention on 16th October, 2026 for directions in the appeal. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 th DAY OF SEPTEMBER, 2026. JEMIMAH KELI JUDGE. IN THE PRESENCE OF: C/A Otieno Applicant -Odongo Respondent – Ms Mwangi RULING IN MACHAKOS ELRC APPEAL NO. E025 OF 2026 10 | P a g e

page 10 of 10