Pamtac Kenya Limited v Simon Mwangi Mareru

2026, challenging the entire judgment of the trial court. The trial court entered judgment in favour of the respondent for the issuance of a certificate of service and the payment of terminal dues for the total sum of Kshs. 982,755 in respect of November 2023 unpaid salary, unpaid annual leave, service pay, and unpaid overtime. 2. The applicant vide Notice of Motion dated 20 th May 2026 brought under Sections 1A, 1B, 3, 3A and 34 of the Civil Procedure Rules Chapter 21 Laws of Kenya, Order 22 Rule 22, Order 42 Rule 6 &7 and Order 51 Rule 1 of the Civil Procedure Rules, Section 38 of the Small Claims Court Act, Article 159 of the Constitution of Kenya 2010 and all other Provisions of the law sought for the Orders: a. Spent b. THAT pending the hearing and determination of this application and the appeal herein, the Honourable Court be pleased to issue orders of stay of execution of the judgement delivered in Mavoko Magistrate Court on the 13th April 2026. c. THAT the Honourable Court do give directions on the hearing of the appeal herein. d. THAT the costs of this Application be provided for. Grounds of the application 3. THAT the appeal lodged herein will be rendered nugatory unless an order of stay is granted. R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 2 | 10

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4. THAT the appeal lodged herein is meritorious and has a high chance of success 5. THAT the Appellant/Applicant is prepared to abide by any orders the court shall issue as a condition for the grant of an order of stay of execution. 6. THAT it is only fair and just that the orders sought herein are granted as the Respondent will suffer no prejudice. 7. THAT it is in the best interest of justice that the Appellant/Applicant be granted an opportunity to argue the appeal lodged herein before the impugned judgement is executed. Response 8. The application was opposed by the Respondent vide his Replying Affidavit dated 15th June, 2026 as followsa) That the Applicant's frivolous Appeal does not raise any bona fide issue that ought to be fully ventilated before the appellate court, and the Applicant has not demonstrated that they have an arguable appeal. b) THAT in rejecting the contents of Paragraphs 6, 7 and 8 of the Supporting Affidavit, it is contended that execution is a lawful process and the Applicant herein, has failed to demonstrate any irreparable harm that it will suffer beyond the ordinary consequences of execution. Furthermore, the R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 3 | 10

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Applicant has not substantiated the kind of loss likely to be sustained, which substantial loss must be specified, and the details and or particulars thereof must be given. The Applicant is put to strict proof of the contrary. c) The content of Paragraph 9 of the Supporting Affidavit is denied and that if the court were to grant the Applicant the Orders being sought, in quest to suffocate the respondent’s right to enjoy the fruits of my judgement, he will suffer great prejudice having filed, served and spiritedly argued my case before the Trial Court, incurred expenses and secured judgement against the Applicant herein, bearing in mind that the Applicant refused to settle the dues since November 2023. d) THAT, in response to Paragraph 10 of the Supporting Affidavit, the claims therein are denied. The Applicant has not provided any evidence to show that they stand to suffer substantial loss if the execution proceeds. The Applicant's mere assertions of being a small business and its inability to settle the decretal sum are insufficient, more so in absence of any cogent evidence. e) THAT the Applicant has not provided any security, which security must be specific, adequate and one that shall achieve the performance of the decree in the event the Appeal is lost. Willingness to abide by conditional orders and furnishing security are totally different things. The Applicant is put to stringent proof to the contrary. R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 4 | 10

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f) THAT prior to this Appeal being prosecuted the court to order the Appellant to deposit the entire decretal sum as awarded in Magistrate Court ELRC case No.E026 of 2024 of Kenya Shillings One Million, One Hundred and Eleven Thousand and Thirty Two and cents Seventeen (Kshs.1, 111,032.17 /=) to be held by the Respondent or by the parties Advocates in an interest joint earning account or as the Court may direct. g) The Respondent stated that he did not know the financial stability of the Appellant Company as the only known asset of the Appellant is the Appellant's Company which runs and operates as a mini-mart and its ability to satisfy the decretal sum in Magistrate Court ELRC case No.E026 of 2024 in the event the appeal fails is highly questioned and this appeal is nothing but a strategy to delay him from enjoying the fruits of the Judgment. h) THAT if the Appellant's Appeal is brought before this Honourable Court in good faith, the Appellant thus ought to be ordered to deposit the entire security for costs within a reasonable time, or the Respondent will suffer irreparable loss. Decision 9. The application was canvassed by way of written submissions. The parties complied. Whether the application is merited. R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 5 | 10

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10. 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.’’ 11. 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— (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.’’ 12. 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 R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 6 | 10

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Court should exercise discretion in an application for a stay of execution, that: ‘’ 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) 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.” 13. On perusal of the memorandum of appeal, I find that arguable points are raised. The grant of service pay when the respondent is alleged to have been under NSSF, the burden of proof of overtime is challenged, and the same was awarded for the period of service and the payable salary. 14. The appeal was filed within 30 days. The application was brought without delay. The Court's discretion to grant or refuse an application for a stay of R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 7 | 10

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execution is not absolute. That discretion should be exercised so as not to prevent an appeal (Butt, supra). In the instant case, the risk of the appeal being rendered nugatory was established, as the Respondent did not rebut the applicant's assertions that he was not capable of refunding the decretal amount in the event the appellant was successful on appeal. 15. Regarding the requirement to furnish security, the position of the applicant, as stated in the affidavit of Mulonzi Kimani, is as follows‘That the Applicant is ready and willing to abide with all the terms and/or conditions of security as the court orders for the due performance of the decretal sum as may ultimately be binding on it. That at the same time, the Applicants states that the entire decretal sum in this case is challenged as not having adequate legal basis; to mean that if the appeal were successful the Respondent would not be entitled to any part of the decretal sum and costs. That I urge the Court to consider dispensing with the need for security and, in its place, order an expedited hearing and determination of the appeal.’ 16. I agreed with the respondent that furnishing security for the decretal sum is mandatory (Order 46(2) of the Civil Procedure Code Rules). The court, having examined the grounds of appeal, finds that depositing ½ of the decretal sum in court as security is sufficient in the circumstances. R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 8 | 10

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Disposition 17. The application is merited, and the court exercised its discretion to allow it as follows: a. That pending the hearing and determination of this appeal, the Honourable Court is pleased to order a stay of execution of the judgment delivered by the Mavoko Magistrate Court on 13th May, 2026, on condition that the ½ decretal amount is deposited in court within 30 days of this order, and in default, the stay to lapse. b. The parties to take directions on the appeal. c. Costs of the application to the Respondent. 18. The decision to apply in E024 of 2026 for the sake of judicial economy, as the cause of action is similar and the applicant is the same. 19. It is so Ordered. 20. Mention on 16th October 2026 for further directions in the appeal. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 9 | 10

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IN THE PRESENCE OF: C/A Otieno Applicants -Muoki Respondent - Kipruto h/b Waithera R U L I N G I N M A C H A K O S A P P E A L N O . E 0 2 3 O F 2 0 2 6 P a g e 10 | 10

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