John Kosgei v Sisibo Tea Factory

therewith, the Respondent avers that should the orders of stay of execution not be granted the Respondent will be greatly prejudiced as in the Respondent’s view, the appeal has overwhelming chances of success. 3. Mr. Leting deposes that the Applicant is ready, willing and able to abide by such reasonable terms as the court may order in the interest of both parties and justice to all. 4. It is further the deposed by Mr. Leting that should the orders sought not be granted the Applicant shall suffer substantial harm. 5. The application is opposed vide a replying affidavit sworn by the Claimant’s advocate SERAH WANJIKU KARUGA sworn on 5 th March, 2026 in which she deposes that the application is a nonstarter, bad in law, misconceived, lacks merit and is made in bad faith hence an abuse of court process, as no appeal had been filed more than 60 days after lodging the Notice of Appeal. 6. It is deposed that the Claimant was in the process of taxing his costs and extracting decree, that a notice of appeal cannot operate as a stay of execution as it only expresses an intention ELD ELRC CAUSE NO. E022 OF 2024 2 RULING

page 2 of 11

to appeal and that there is no material before the court upon which it can asses whether the intended appeal raises arguable or triable issues. It is deposed that the appeal is frivolous, premature and merely intended to delay execution. 7. It is further deposed that the Applicant failed to demonstrate substantial loss or irreparable damages it may suffer if stay is not granted, as the decree herein is a money decree and is capable of being refunded should the intended appeal succeed. 8. It is further deposed that no application has been made for copy of proceedings as none was served upon the Claimant. 9. The application was disposed of by way of written submissions. Although both parties informed the court during the last mention for taking ruling date on 3 rd June, 2026, that they had both filed their submission in respect of the application, none of them furnished the court with a hard copy as required by rule 24(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 which provides: 24. (1) A party shall file pleadings electronically and shall, within seven days of the filing, supply the Court with one ELD ELRC CAUSE NO. E022 OF 2024 3 RULING

page 3 of 11

hard copy of the pleadings or such number of hard copies as the Court may direct. 10. I have therefore not considered the submissions. Determination 11. I have carefully considered the application 22 nd dated November 2026 and the replying affidavit. The issue for determination is whether the Respondent has established sufficient grounds to warrant the grant of orders of stay of execution pending hearing and determination of its appeal. 12. Rule 5(2)(b) of the Court of Appeal Rules permits this court to grant orders of stay of execution where a notice of appeal has been lodged in accordance with rule 75 of the said rules, which provides that any person who desires to appeal to the Court shall give notice in writing, which shall be lodged with the registrar of the superior court within fourteen days of the date of the decision against which it is desired to appeal. 13. In the instant case the Notice of Appeal was lodged on 25 th November, 2025, 12 days after the judgment that is the subject of appeal. ELD ELRC CAUSE NO. E022 OF 2024 4 RULING

page 4 of 11

14. Order 42 rule 6(2) of the Civil Procedure Rules further provides for the conditions for grant of stay pending appeal as follows: (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. 15. In the Court of Appeal the requirements for grant of orders for stay of execution pending appeal are: i. that the appeal is arguable and not frivolous and that the appeal raises bona fide issues, ii. That the appeal would be rendered nugatory if the stay orders are denied and the judgment is executed in the interim. 16. The intended appeal being against my decision, it is not in my place to consider the additional grounds which can only be considered if the application for stay of execution was made in the Court of Appeal. ELD ELRC CAUSE NO. E022 OF 2024 5 RULING

page 5 of 11

17. As is evident from the documents in court, the Notice of Appeal was lodged timeously, within 12 days of delivery of the judgement of this court. I am therefore satisfied that the appeal was lodged without unreasonable delay. 18. On the second limb of that condition, the Applicant has intimated that it will be prejudiced if the orders of stay are not granted and further that it will suffer substantial harm. The Respondent however did not explain the nature or extent of the harm or prejudice it would suffer. 19. The Claimant on his part deposed through his counsel, that the Applicant failed to demonstrate substantial loss and/or damages it would suffer if stay is not granted and that this is a money decree capable of being refunded should the appeal be successful. The Claimant further deposed that the Applicant has not demonstrated that he would not be able to refund the decretal sum if called upon to do so. 20. The Applicant has an obligation to demonstrate that it would suffer prejudice while at the same time the Claimant has to demonstrate ability to pay, where such ability is questioned. Both parties failed to demonstrate the same. ELD ELRC CAUSE NO. E022 OF 2024 6 RULING

page 6 of 11

21. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words: “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Eldoret HCCA E047 of 2026 Page 13 of 19 Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.” 22. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the court held that: - ELD ELRC CAUSE NO. E022 OF 2024 7 RULING

page 7 of 11

“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. The purpose of requiring security in an application for stay of execution pending appeal is to guarantee the due performance of the decree should the appeal fail. In exercising its discretion, the Court must strike a balance between the right of the successful litigant to enjoy the fruits ELD ELRC CAUSE NO. E022 OF 2024 8 RULING

page 8 of 11

of judgment and the right of the Applicant to pursue an appeal without undue hardship. 23. In the instant case, as I have already intimated, the Applicant has not demonstrated the nature of substantial loss or prejudice. The Claimant is therefore not to be called upon to demonstrate ability to pay as his burden is secondary and arises only when the Applicant has demonstrated fear of the Decree Holder’s ability to refund the decretal sum should the appeal be unsuccessful, as was held in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) where the High Court stated: i. “The onus of proving substantial loss and in effect that the Respondent cannot repay the decretal sum Eldoret HCCA E047 of 2026 Page 15 of 19 if the appeal is successful lies with the Applicant; follows after the long age legal adage that he who alleges must prove. Real and cogent evidence must be placed before the court to show that the Respondent is notable to refund the decretal sum should the appeal succeed. It is not, therefore, enough for a party to just allege as is the case here…He must prove specific ELD ELRC CAUSE NO. E022 OF 2024 9 RULING

page 9 of 11

details and particulars…This legal burden does not shift to the Respondent to prove he is possessed of means to make a refund. Except, however, once the Applicant has discharged his legal burden and has adduced such prima facie evidence such that the Respondent will fail without calling evidence, the law says that evidential burden has been created on the Respondent. And it is only where financial limitation or something of sort is established that the evidential burden is created on the shoulders of the Respondent, and he may be called upon to furnish an affidavit of means” 24. In view of the foregoing and in order to be fair to both parties, this court will grant the orders for stay of execution upon the following conditions: i. the Respondent/Applicant shall pay to the Claimant the sum of Kshs. 368,400 comprising the awards in respect of one months’ pay in lieu of notice, Kshs. 153,500, salary for February and 6 days worked in March, 2024, Kshs. 184,200 and unpaid leave Kshs. 30,700 within 30 days. ELD ELRC CAUSE NO. E022 OF 2024 10 RULING

page 10 of 11

ii. The Respondent shall deposit the balance of the decretal sum being Kshs. 1,535,000 in a joint interest earning account in the joint names of counsel for the parties herein within 30 days. iii. In default the Claimant/Decree-Holder shall be at liberty to execute the decree. 25. In view of the orders made above, each party shall bear its costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 1ST DAY OF OCTOBER, 2026 MAUREEN ONYANGO JUDGE ELD ELRC CAUSE NO. E022 OF 2024 11 RULING

page 11 of 11