Gordon Otieno Odundo v Kenya Hospital Association T/A The Nairobi Hospital

(b) That pending hearing and determination of the intended appeal to the Court of Appeal, an order do issue for the stay of any further and/or consequential proceedings in this suit. (c) That this Court do grant any other order that it may deem just and expedient to grant in the circumstances. (d) 2. That costs of the application be provided for. The application sets forth on its face the grounds on which it is brought, and is based on the affidavit of Gilbert DRAFT Nyamweya sworn on 12 the application. th November, 2025 in support of It is deponed in the said supporting affidavit, inter-alia:(a) that this Court entered Judgment on 22nd October, 2025 in favour of the Claimant for, inter-alia, a sum of Kshs.72,904,264.92 constituting an award of 12 months’ salary, 3 months’ notice pay and credit card expenses deducted from terminal dues. (b) that the Respondent is aggrieved by the said Judgment, and intends to appeal to the Court of RULING Nairobi ELRC Cause No. E548 of 2021 2 of 15

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Appeal; and has an arguable appeal with good prospects of success, as detailed in the annexed draft memorandum of appeal. (c) that if the Respondent/Applicant is forced to pay the extremely high total amount of Kshs.72,904,264.92 with interest and costs before hearing and determination of the application and appeal, its cashflow and attendant operations will be greatly harmed; and that this will detrimentally affect the thousands of patients that the Respondent cares for on daily basis; and DRAFT that seamless supply of medical items and drugs will be disrupted. (d) that the Respondent/Applicant will suffer irreparable harm as it is apprehensive that it will not be able to recover the said large and significant amount from the Claimant, thus rendering the appeal nugatory. (e) that the Respondent/Applicant lodged a Notice of Appeal dated 25th October, 2025 expressing its intention to appeal the said decision to the Court of Appeal, together with a letter of even date RULING Nairobi ELRC Cause No. E548 of 2021 3 of 15

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requesting for a copy of typed proceedings required for the substantive appeal. (f) that it is necessary that the orders sought be granted in order to preserve the subject of the intended appeal. 3. The application is opposed by the Claimant/Respondent vide his detailed replying affidavit sworn on 8th December, 2025. It is deponed in the said replying affidavit, inter- alia:(a) that the intended appeal is not arguable in view of DRAFT the detailed reasons set out in the replying affidavit. (b) that the Claimant/Respondent is apprehensive that he will be deprived of the awarded amounts in the event of the Respondent/Applicant’s appeal being dismissed, as the Applicant has laid out in its supporting affidavit the potential adverse effects to its cashflow in the event the decretal sum is paid to the Claimant. (c) that there is an ongoing Insolvency Petition Proceedings as against the Applicant Hospital RULING Nairobi ELRC Cause No. E548 of 2021 4 of 15

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(Insolvency Notice E133 of 2024: (Opticom (K) Limited – vs – Kenya Hospital Association T/A Nairobi Hospital), which involve an undisputed debt of Kshs.51 million; and that the Hospital’s application for stay of further proceedings was dismissed on 25th July, 2025. (d) That it is a matter of common knowledge that the Applicant Hospital has been having disagreements with Kenya’s major insurance companies who had suspended their services to the Hospital. (e) that the Respondent/Applicant’s claim that the DRAFT Claimant cannot refund the awarded sum in the unlikely event that the [intended] appeal is successful is misleading, and is not supported by any evidence. That the Claimant has, for years, relied on various consultancies from which he has derived a stable income. (f) that the Applicant’s act of illegally terminating the Claimant’s employment denied him a predictable and constant income. RULING Nairobi ELRC Cause No. E548 of 2021 5 of 15

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4. The application herein, filed under a Certificate of Urgency, was placed before the Court (Manani, J) on 20th November, 2025 and interim orders of stay of execution of the Court’s decree herein pending appeal were issued, pending hearing and determination of the application. The Court’s record shows that on 1st December, 2025, the matter was placed before the Judge presiding over the Court’s Claims and Labour Relations Division, (O. N. Makau, J), who issued an order allocating the matter to this Court for hearing and determination of the application; the impugned Judgment having been delivered by Marete, J on 22nd DRAFT October, 2025. 5. Parties filed written submissions on the application pursuant to this Court’s directions in that regard. 6. Section 13 of the Employment and Labour Relations Court Act provides that this Court’s Judgments, awards, orders or decrees shall be enforceable in accordance with the rules made under the Civil Procedure Act. Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules 2024, on the other hand, provides as follows:- RULING Nairobi ELRC Cause No. E548 of 2021 6 of 15

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“(2) Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules”. 7. Turning to the Civil Procedure Rules, stay of execution of the Court’s decree pending appeal is governed by Order 42 Rule 6 of the said Rules. Order 42 Rule 6(1), (2) and 4 of the Civil Procedure Rules provides as follows:“(1) No appeal or second appeal shall operate as a stay of execution of proceedings under a decree or order appealed from except in so DRAFT far as the Court appealed from may order, but the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an RULING Nairobi ELRC Cause No. E548 of 2021 7 of 15

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order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless:(a) the court is satisfied that substantial loss may result to the Applicant unless the order application is made has been and that made the without unreasonable delay; and DRAFT (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 made by the applicant. (3) ... (4) For the purposes of this rule, an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given”. RULING Nairobi ELRC Cause No. E548 of 2021 8 of 15

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8. In the present case, it is undisputed that the Respondent/Applicant has on record a Notice of Appeal dated 25th October, 2025. It is also not disputed that the said Notice of Appeal was filed within the time prescribed by the Court of Appeal Rules. By dint of Order 42 Rule 6(4) of the Civil proceedings Appeal Rules, before and this for purposes Court, of the Respondent/Applicant’s appeal to the Court of Appeal is deemed to have been filed when the notice of appeal was given/filed. DRAFT 9. Having established that there is a valid notice of appeal filed in accordance with the aforestated law, I will not delve into the merits and/or urguability of the intended appeal, as doing so will be tantamount to attempting to sit on appeal over the impugned Judgment. That will be for the Court of Appeal to do. 10. I have noted that the Respondent/Applicant has not offered to give any security for due performance of the Court’s decree herein as may ultimately be binding on it, in the event the intended appeal does not succeed. RULING Nairobi ELRC Cause No. E548 of 2021 9 of 15

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11. The Claimant has not, on the other hand, demonstrated ability to refund the decretal sum herein if the same is paid out to him and the intended appeal succeeds. So, should the stay order sought issue, in view of the foregoing circumstances, and if so, in what terms.” 12. It was stated as follows in the case of Charles Mutethia Mutea & another – vs – Ibrahim Mutua [2009] eKLR:“But the critical consideration is whether the Applicants stand to suffer loss should they pay DRAFT the decretal sum over to the Respondent and eventually the appeal were to succeed. It is this loss that must be prevented. How does this loss occur’’. It will occur when the decretal sum is paid over to a party in whose favour Judgment has been passed, who has no means to refund the same in case the appeal is successful. In other words, if the person in whose favour a Judgment has been passed is capable of refunding the decretal sum, then courts will normally not stay execution. RULING Nairobi ELRC Cause No. E548 of 2021 10 of 15

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The other consideration in balancing the interest of the parties is whether the payment of the decretal sum will have the effect of crippling the operations or business of the Applicant. It is now settled that once the Applicant raises doubt about the Respondent’s financial status, the legal burden remains on the Applicant but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum if it is paid out to him and the pending appeal were to DRAFT succeed.” 13. It was stated as follows in the case of Grace Wangechi Gikuju & Another – vs – Samuel Kongori Njoki [2022] eKLR:“The duty to proof that the Respondent is in a position to refund the money was on him as it is him who knows the resources there are in his possession – see National Industrial Credit Bank Ltd – vs – Aquinas Francis Wasike & Another RULING Nairobi ELRC Cause No. E548 of 2021 11 of 15

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(supra). The Respondent did not discharge that burden. All that he said is that he runs a business without disclosing the type of business he is involved in. This was not sufficient to prove that he was not a man of straw. He had therefore not shown that he is in a position to refund the money in case the appeal succeeds. The apprehension by the Appellant that they stand to suffer substantial loss is well founded”. 14. In the present case, the Claimant/Respondent has not exhibited any evidence on the state of his income earning DRAFT and asset base. 15. It is clear from the wording of Order 42 Rule 6(1) of the Civil Procedure Rules that this Court’s power to stay execution of its decree pending appeal is discretionary. In exercising its said discretion, however, the Court is obligated, by dint of Sub-rule (2) of the aforesaid rule, to secure the sanctity of the decree by ensuring that the person against whom the decree debtor/Applicant) is provides RULING Nairobi ELRC Cause No. E548 of 2021 issued (the such security Judgment for due 12 of 15

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performance of the decree as may ultimately be binding on him. 16. In balancing the interests of both parties, the Court must exercise its discretion in a way that ensures that the intended appeal, if successful, is not rendered nugatory. The Court of Appeal (Madan, JA) stated as follows in the case of Butt – vs – Rent Restriction Tribunal [1979] eKLR:“. . . It is the discretion of the Court to grant or refuse stay, but what has to be judged is whether there are or not particular circumstances in the DRAFT 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 to prevent the appeal, if successful, from being nugatory, per Brett L J in Wilson vs. Church (No. 2) 12 ChD (1870) 454 at p459. In the same case, Colton L J, said at p. 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of RULING Nairobi ELRC Cause No. E548 of 2021 13 of 15

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appeal, this Court has to see that the appeal, if successful, is not nugatory.” 17. In view of all the foregoing, and having considered written submissions filed on behalf of both parties herein, the Notice of Motion dated 12th November, 2025 is hereby allowed in the following terms:(a) There will be a stay of execution of this Court’s decree and further proceedings herein pending hearing appeal, and determination but on Respondent/Applicant DRAFT of the condition deposits intended that the the Judgment sum (Kshs.72,904,264.92) in an interest earning bank account to be held in a reputable bank jointly by Advocates for both parties herein, within forty-five (45) days of this Ruling. (b) Failure to comply with the foregoing conditional stay order, the stay order herein issued shall automatically lapse. (c) Costs of the application shall abide the outcome of the intended appeal. RULING Nairobi ELRC Cause No. E548 of 2021 14 of 15

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18. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online DRAFT Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Miss Oliwa for the Claimant/Respondent Miss Sirawa for the Respondent/Applicant RULING Nairobi ELRC Cause No. E548 of 2021 15 of 15

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