Robinson Investments Limited v Jestine Nelima Makhanu

of execution of the judgment and decree of the court given on 26th May, 2026 in Nakuru MCELRC E291 of 2024; Jestine Nelima Makhanu versus Robinson Investments Limited. d.Costs of the application be provided for. 2. The application is brought under Rules 21(2) of the Employment and Labour Relations Court 2024, Order 42 Rule 6(1), (2) and (6), Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law Respondent/Applicant’s supporting affidavit 3. The application is supported by the affidavit sworn by Stephen Mogusu Nyangwono, the Appellant/Applicant’s Human Resource Manager, who confirms authorization to act on its behalf, dated even date as the application. 4. The Appellant/Applicant avers that the trial court in Nakuru MCELRC E291 of 2024 awarded Jestine Nelima Makhanu Kshs.956,139.60/= plus interest and costs on 26th May 2026. NAKURU APPEAL NO. E068 OF 2026 RULING 2 | PAGE

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5. The Appellant/Applicant avers that it obtained a 30-day stay of execution that expired on 26th June 2026 and subsequently filed a Memorandum of Appeal dated 16th June 2026, arguing that the appeal would be rendered nugatory without a further stay. 6. The Appellant/Applicant avers that its Appellant’s advocates have requested certified proceedings from the Nakuru Magistrates’ Court, asserting that the appeal has strong grounds and high prospects of success. 7. The Appellant/Applicant concludes that failure to grant a stay would cause substantial loss if the Respondent proceeds with execution of the judgment. Respondent’s replying affidavit 8. The Respondent opposed the application vide a replying affidavit dated 6th July 2026. 9. The Respondent avers that the Appellant/Applicant’s application dated 29th June 2026 is misconceived, incompetent, and lacking merit. 10. The Respondent emphasizes that judgment was already delivered in her favour on 26th May 2026 and NAKURU APPEAL NO. E068 OF 2026 RULING 3 | PAGE

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argues that the Appellant has failed to demonstrate substantial or irreparable loss if stay orders are denied. 11. The Respondent contends that appeals in monetary decrees are not rendered nugatory, and the court must balance her right to enjoy a lawful judgment against the Appellant/Applicant’s right to appeal. 12. The Respondent proposes that half of the decretal sum be deposited in court and the other half paid to her, asserting that a bank guarantee is inadequate security without proof of commitment from a bank. 13. The Respondent concludes by stressing that litigation must come to an end and urges the court to dismiss the application with costs. 14. Parties canvassed the application by way of written submissions. Appellant/Applicant’s submissions 15. The Appellant/Applicant relied on Order 42 Rule 6(2) of the Civil Procedure Rules, which requires proof of substantial loss, timely filing, and provision of security. The Appellant/Applicant relied on the case Halai & another v Thornton & Turpin NAKURU APPEAL NO. E068 OF 2026 RULING 4 | PAGE

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(1963) Ltd [1990] KECA 65 (KLR), where the Court of Appeal held that the High Court’s discretion to grant stay is limited by three conditions sufficient cause, substantial loss, and furnishing of security. The Court of Appeal also referenced the case of Hassan Guyo Wakalo v Straman East Africa Ltd [2013] KECA 119 (KLR), emphasizing that an Applicant must show the appeal would be rendered nugatory if stay is denied. The Appellant/Applicant concludes that the first consideration is whether the applicant stands to suffer substantial loss, noting that payment of the decretal sum before the appeal is determined would impose a heavy financial burden. 16. The Appellant/Applicant submitted that paying the decretal sum before the appeal’s determination would cause irreparable financial prejudice, as the Respondent has not shown capacity to refund if the appeal succeeds. The Appellant/Applicant relied on the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR), where the court held that once an applicant reasonably fears the Respondent’s NAKURU APPEAL NO. E068 OF 2026 RULING 5 | PAGE

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inability to refund, the evidential burden shifts to the Respondent under Section 112 of the Evidence Act. The Appellant/Applicant contended that the Respondent has provided no proof of financial ability, thus exposing it to substantial loss if execution proceeds. On timeliness, the Appellant notes that judgment was delivered on 26th May 2026, the initial stay lapsed on 26th June 2026, and the application was filed on 29th June 2026, arguing this was within a reasonable period. The Appellant/Applicant relied on Frodak Kenya Limited v Simon [2025] KEELRC 1456 (KLR), where the court stated as follows: “The court is satisfied that there has been no inordinate delay in filing of the application as the judgement appealed was delivered on the 28th October, 2024 and the application was filed a month and 21 days later.” 17. The Appellant/Applicant submitted that it is ready to provide a bank guarantee for the decretal sum as security for due performance of the decree. It further argues that the appeal raises arguable issues with reasonable prospects of success, citing the case of Ndambuki & Another v National Land NAKURU APPEAL NO. E068 OF 2026 RULING 6 | PAGE

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Commission & 2 Others [2024] KECA 534 cited the case of Stanley Kangethe Kinyanjui V Tony Ketter & 5 Others [2013] KECA 378 (KLR), where the Court of Appeal defined an arguable appeal as one that “ought to be argued fully before the court; one which is not frivolous.” 18. The Appellant concludes that granting stay orders is essential to preserve the substratum of the appeal, as execution of the judgment could cause irreversible consequences and loss of the decretal sum, defeating the appeal’s purpose. Respondent’s submissions 19. The Respondent maintains that the Appellant/Applicant has not demonstrated substantial or irreparable loss and that appeals in money decrees are never rendered nugatory. The Respondent, relying on Order 42 Rule 6(2) of the Civil Procedure Rules, she stresses that the burden of proving substantial loss lies with the applicant. The Respondent relied on Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), which underscores that a stay of execution is discretionary and must be exercised judiciously, and NAKURU APPEAL NO. E068 OF 2026 RULING 7 | PAGE

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Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), where the Court of Appeal held that money decrees are not rendered nugatory by appeal. The Respondent further relied on Anthony Musyimi Mutisya v Penina Mwelu Ndete (suing as the legal representative of the estate of Sharon Mwangi Maringa) [2017] KEHC 3001 (KLR), supporting payment of half the decretal sum to the decree-holder, as well as Amal Hauliers Limited v Hassan [2017] KEHC 10150 (KLR) and Peter Gacheru Njoroge v Benard Mwangi [2019] KEHC 5167 (KLR) to reinforce her position. 20. The Respondent concludes that a bank guarantee is inadequate security without proof of commitment from a bank and urges dismissal of the application with costs. Analysis and determination 21. The court has considered the application, supporting affidavit, replying affidavit together with the rival submissions by both counsels. The issue for determination is whether the Applicant has established valid reasons to grant stay of execution. NAKURU APPEAL NO. E068 OF 2026 RULING 8 | PAGE

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22. Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows: “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.” 23. In Butt v Rent Restriction Tribunal(supra) the Court of Appeal stated as follows: “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 NAKURU APPEAL NO. E068 OF 2026 RULING 9 | PAGE

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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.” 24. In this instant case, the trial court awarded the Respondent Kshs.956,139.60 plus interest and costs on 26th May 2026. The Appellant obtained a 30-day stay of execution that lapsed on 26th June 2026 and filed an appeal, arguing it would be rendered nugatory without a further stay and asserting strong grounds for success. It maintains that failure to grant stay would cause substantial loss. Conversely, the Respondent contends the application dated 29th June 2026 is misconceived and lacking merit, stressing that judgment was already delivered in her favour and that the Appellant has not shown substantial or irreparable loss it is likely to suffer. She argues appeals in money decrees are not rendered nugatory, proposes that half the decretal sum be deposited in court and half paid to her, and dismisses NAKURU APPEAL NO. E068 OF 2026 RULING 10 | P A G E

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a bank guarantee as inadequate security without proof of commitment from a bank. 25. The court finds that the Appellant/Applicant has satisfied the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, having filed the application within a reasonable time, demonstrated the risk of substantial loss, and expressed willingness to provide security for the decretal amount. In support, the court relies on the case of Krishen Dev Handa v Fatuma Mohamed [1986] KECA 57 (KLR), where the Court of Appeal granted stay of execution on similar grounds. 26. The court having considered the pleadings, submissions and applicable law holds that this application for stay of execution is merited and is therefore granted. The following orders are issued:a.This Honourable court do hereby issue stay of execution of the judgment and decree of the court given on 26th May, 2026 in Nakuru MCELRC E291 of 2024; Jestine Nelima Makhanu versus Robinson Investments Limited pending the hearing and determination of the intended appeal. NAKURU APPEAL NO. E068 OF 2026 RULING 11 | P A G E

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b.The court directs that the decretal sum of Kshs.956,139.60/= be deposited in a joint earning interest account in the joint names of the advocates representing the parties within 21 days from this date. c. The appeal is to be filed within 21 days hereof. 27. The costs of the application be in the intended appeal. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 25th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. NAKURU APPEAL NO. E068 OF 2026 RULING They have 12 | P A G E

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waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAKURU APPEAL NO. E068 OF 2026 RULING 13 | P A G E

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