Makaka v Protective Custody Limited

2. The application is made under section 1A, 1B, 3, 3A, 63(e) and 95 of the Civil Procedure Act, Order 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, section 7 of the Appellate Jurisdictions Act and all other enabling provisions of the law. 3. The Application is supported by the grounds set out on its face as set out below: a. By a Judgment, the Court allowed an Appeal by the Appellant herein emanating from the Chief Magistrates’ Court, with the Employment and Labour Court awarding the Appellant damages totalling to Kenya Shillings 297,181.64; b. The Respondent is dissatised with the aforesaid Judgment and has led a Notice of Appeal as against the above Judgment and further sought the typed proceedings; c. Any delay in the determination of this application will be detrimental to the Respondent and would lead to substantial and irreparable loss to the Respondent on the following grounds:i. The Respondent/Applicants has already led a Notice of Appeal at the Employment and Labour Court of Kenya against the Judgment of this Court delivered on the 23rd of April 2026; ii. That unless this Court stays the Court’s Judgment dated 23rd of April 2026 and the consequential proceedings, pending the hearing and determination of the Appeal, If the Respondent/Applicant is successful on appeal, the same would have rendered the appeal nugatory and purely academic; iii. That if the Appellant executes the Court Order against the Respondent/Applicant and the Judgment dated 23rd of April 2026,overturned on appeal, the Appellant herein will be unlikely be able to compensate the Respondent/Applicant on damages and costs will have been incurred during the execution of the Judgment for reasons that the Appellant herein has no source of income; iv. The Respondent/Applicant undertakes to deposit security for due performance of such Orders as may ultimately be binding upon the Respondent; v. The Orders of stay pending appeal as sought will cause no prejudice whatsoever to the Respondent; and vi. That it is in the interest of justice that this Court grants the orders sought. 4. The application is further supported by the Adavit sworn by JANE MICHORI, a Director of the Respondent/Applicant on 19th May, 2026, in which she reiterates the grounds on the face of the application. 5. The application is opposed by the Appellant through the replying adavit of JOHN MAKAKA, the Appellant herein sworn on 11th June, 2026. The Appellant deposes that the application is frivolous, vexatious, lacks merit and has been brought in bad faith. He deposes that he ought to be allowed to enjoy the fruits of his judgment to mitigate his suering. He deposes that the Applicant has not satised the conditions under Order 42 Rule 6(2) of the Civil procedure Rules, that the Applicant has not demonstrated substantial loss and that it is a large organization that cannot be bankrupt from paying the decretal sum. The Appellant further deposes that there is no Memorandum of Appeal attached to demonstrate an arguable appeal. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 2

page 2 of 7

6. The Appellant proposes that should the court grant the orders, it should be conditional upon the Applicant paying half of the decretal sum to the Appellant and depositing the balance into an interest earning account in the joint names of their advocates. 7. The application was disposed of by way of written submissions. The Respondent/Applicant’s submissions are dated 18th June, 2026 while the Appellant’s submissions are dated 19th May, 2026. Applicant/Respondent’s Submissions 8. In its submissions the Applicant submits on the following heads: 1. Explanation for delay; 2. Length of delay; 3. Whether delay was intentional; 4. Whether applicant acted diligently after discovering default.5. Whether the intended appeal is arguable; 6. Prejudice to respondents; 7. Interests of substantive justice. 8. Whether this Honourable court has jurisdiction to grant prayers sought in the Application. 9. On issues 1, 2 3 and 4 the Applicants submits that the issues have been addressed in the grounds and adavit supporting the application dated 17th April, 2026. It is submitted that the delay was not intentional but was due to an oversight and/or inadvertent mistake on the part of the Applicant’s advocate owing to the fact that the nature of issues at the trial court was inadvertently not looked into. It is submitted that mistakes of counsel ought not to be visited upon the Applicant. 10. The Applicant states that it sought clarication on the court where the appeal should be led as reected in the ruling dated 11th March, 2026 at page 5 thereof. 11. The Applicant submits that the application herein was prepared the day after the ruling in the application dated 11th March, 2026 in Eldoret HCCA NO. E015 of 2026. That the advocate took note of the fact that jurisdiction is a key issue and that time was also of essence and thus it led the application dated 11th March, 2026 under certicate of urgency, for determination at the earliest instance. 12. The Applicant further submits that compliance with pre-conditional orders of stay of execution granted vide the trial court ruling dated 11th March, 2026 was not done since the parties were waiting for the court’s determination on the application dated 11th March, 2026. 13. It is submitted that upon counsel for the Applicant realizing that the appeal was lodged in the wrong forum it moved this court under certicate of urgency. That the Applicant further made it clear that it intended to withdraw the appeal in Eldoret HCCA NO. E015 of 2026, having come to the conclusion that the appeal was lodged in the wrong forum. 14. The Applicant further submits that in the subsequent ruling delivered on 4th May, 2026 in respect of the application dated 11th March, 2026 the High Court found that it had no jurisdiction to handle the appeal. The Applicant submits that the appeal has since been withdrawn via Notice of Withdrawal of the Appeal case in Eldoret HCCA NO. E015 of 2026. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 3

page 3 of 7

15. The Applicant submits that it has explained the reasons for the delay in lodging appeal before this court and further demonstrated that it acted diligently upon discovering the error. It prays that this court nds the delay excusable and extends time allowing the Memorandum of Appeal led herein dated 17th April, 2026 to be admitted for purposes of canvassing the appeal. 16. On the issue whether the intended appeal is arguable the Applicant submits that the grounds of appeal as set out in the Memorandum of Appeal dated 17th April, 2026 are weighty and require the court’s determination. It further submits that the Respondent and its insurer are willing to abide by any conditions set by the court with regard to prayers sought in the instant application in terms of furnishing security pending appeal. That they are amenable to depositing the whole of the decretal sum in ELDORET CMCC NO. 565 OF 2027 in a joint interest earning account in the names of parties advocates on record or any fresh conditions that may emanate from this court. 17. On the issue whether the Respondent shall suer prejudice if the Applicant’s prayers are granted, the Applicant submits that no prejudice or irreparable loss will be suered by the Respondent in the event the orders sought are granted since the Respondent shall have a chance to participate in the appeal. 18. It is submitted further that the Respondent has not demonstrated any real prejudice he will suer if the Applicant’s prayers are allowed. 19. On the issue of jurisdiction, the Applicant submits that it has no doubt that this court has jurisdiction to determine its intended appeal. That this issue has been claried in the ruling dated 4th May 2026 on the Applicant’s application dated 11th March, 2026. The Applicant notes that this court’s jurisdiction is provided for in Article 165(2) as read with Article 165(b) of the Constitution and section 12(1) and (2) of the Employment and Labour Relations Court Act, that the issues in ELDORET CMCC NO. 565 OF 2027 concerns a dispute between an employer and employee relating to an injury at work. 20. The Applicant urges the court to exercise its inherent jurisdiction under section 3A of the Civil Procedure Act to grant the orders sought, relying on the decision in Raj Pahadur Ras Raja v Seth Hiralal as observed by the Supreme Court of India that “the inherent power has not been conferred on the court; it is a power in the court by virtue of its duty to do justice between the parties before it.” The Applicant submits that justice must not be sacriced on the alter of strict adherence to provisions of procedural law which at times create hardship and unfairness. 21. The Applicant further relies on Article 159(2) of the Constitution and section 63 of the Civil Procedure Act on upholding the overriding objective/principle of substantive justice. The Appellant’s submissions 22. The Appellant submitted that the Applicant does not meet the requisites for grant of the orders sought as set out in Order 42 Rule 6 of the Civil Procedure Rules. He submits that the Applicant has not demonstrates that it will suer substantial loss if execution is not stayed relying on the decision in Kenya Shell Limited v Kibiru & another (1986) eKLR and James Wangalwa & another v Agnes Naliaka Cheseto (2012) KEHC 1094 (KLR). 23. submitted on two issues, whether the Applicant has met the threshold for grant of an order for stay of execution; and, who should pay costs of the present application. 24. On the rst issue, the Respondent submits that Order 42 Rule 6 provides for the conditions to be satised before a court can issue the orders of stay being substantial loss unreasonable delay, security for the dur performance of the decree. For emphasis the Respondent relied on the decisions in Kenya Shell https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 4

page 4 of 7

Limited v Kibiru & another (1986) KLR; James Wangalwa & another v Agnes Naliaka Cheseto (2012) KEHC 1094 (KLR) and Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates. 25. The Appellant further submits that although the application was led timeously, the Applicant/ Respondent did not address the issue of security and has thus not discharged the threshold for grant of stay of execution pending appeal. He relies on the decision in Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates where the court discussed the purpose of security. 26. The Appellant prays that should stay be granted, it should be conditional upon the Applicant/ Respondent paying half of the decretal sum to the Appellant and depositing the balance in a joint interest earning account in the names of counsel for the parties. 27. On costs the Appellant prays that having succeeded in demonstrating that the Applicant does not meet the threshold for granting the orders sought in its application, he should be awarded costs as costs follow the event. Analysis and Determination 28. I have considered the Application, the adavits on record, the rival submissions of the parties, and the authorities cited. The main issue falling for determination is whether the Applicant has satised the conditions for the grant of leave to appeal out of time and for grant of orders for stay of execution pending appeal. 29. Rule 5 of the Appellate Jurisdictions Act provides as follows: 5. Suspension of sentence, injunction and stay of execution and stay of further proceedings (1) . (2) Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may— (a) ; (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just. 30. Further, Order 42 Rule 6 provide for the principles of stay of execution being 31. Addressing the principles for grant of stay pending appeal, RINGERA J. (as he then was) in Re: Global Tours & Travels Limited [2000] LLR 1061, expressed himself thus “ From a textual analysis it appears that the court has a discretion to order stay of proceedings pending appeal from its order or decree and such discretion is unfettered. The strictures, that sucient cause be shown and that no order for stay should be made unless the court is satised that substantial loss may result to the applicant and that the application has been made without unreasonable delay and further that such security as may be ordered for the due performance of the order or decree has been given, are on a plain reading of the rule, applicable only to applications for stay of execution." https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 5

page 5 of 7

32. In the instant application the Applicant/Respondent has in the application and the supporting adavit oered to deposit security as may be ordered by the court. The application was led without delay. The Applicant has however not addressed the issue of irreparable loss. 33. Further, no mention is made in the application about substantial loss likely to be suered by the Applicant in the event the prayers sought are not granted. In James Wangalwa & another v Agnes Naliaka Cheseto, the court observed: 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 aairs that will irreparably aect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…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.” With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. 34. The Applicant has expressed fears that should the decretal sum be released to the Appellant he is unlikely to refund the same should the appeal be successful. 35. The Appellant did not deny the same in his replying adavit or demonstrate that he will be in a position to refund the money paid to him should the appeal succeed. 36. In Civil Appeal No. E079 OF 2021 Elijah Njagi & another v Dickson Njoroge Maina, the court observed: 20. The law, however appreciates that it may not be possible for the applicant to know the respondent’s nancial means. The law is therefore that all an applicant can reasonably be expected to do, is to swear, upon reasonable grounds, that the Respondent will not be in a position to refund the decretal sum if it is paid over to him and the pending appeal was to succeed but is not expected to go into the bank accounts, if any, operated by the Respondent to see if there is any money there. The property a man has is a matter so peculiarly within his knowledge that an applicant may not reasonably be expected to know them. In those circumstances, the legal burden still remains on the applicant, but the evidential burden would then, in those circumstances, where the applicant has reasonable grounds which grounds must be disclosed in the application that the Respondent will not be in a position to refund the decretal sum if the appeal succeeds, have shifted to the Respondent to show that he would be in a position to refund the decretal sum. See Kenya Posts & Telecommunications Corporation https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 6

page 6 of 7

vs. Paul Gachanga Ndarua Civil Application No. Nai. 367 of 2001; ABN Amro Bank, N.K. vs. Le Monde Foods Limited Civil Application No. 15 of 2002. 21. What amounts to reasonable grounds for believing that the respondent will not be able to refund the decretal sum is a matter of fact which depends on the facts of a particular case. In my view even if it were shown that the respondent is a man of lesser means, that would not necessarily justify a stay of execution as poverty is not a ground for denial of a person’s right to enjoy the fruits of his success. Suce to say as was held in Stephen Wanjohi vs. Central Glass Industries Ltd. Nairobi HCCC No. 6726 of 1991, nancial ability of a decree holder solely is not a reason for allowing stay; it is enough that the decree holder is not a dishonourable miscreant without any form of income. 37. In the present case the Appellant/Respondent did not oer any information on his ability to pay. All he stated was that he is a person of modest means while the Respondent/Applicant is a well-resourced, large corporate entity that will not go bankrupt if it pays the Appellant/Respondent half the decretal. 38. It is my nding that the Appellant/Respondent has not persuaded the court that should he be paid half of the decretal sum he will be in a position to refund the same should the appeal succeed. In the circumstances I am satised that the appeal may be rendered nugatory and the Applicant/Respondent is likely to suer irreparable loss should stay not be granted. 39. Accordingly, the Application dated 19th May, 2026 is hereby allowed in the following terms: - 40. i. Execution of the Judgment of this court dated and delivered on 23rd April, 2026 is hereby stayed pending the hearing and determination of the Applicant/Respondent’s intended appeal to the Court of Appeal subject to the Applicant/Respondent depositing the entire decretal sum in a joint interest earning account in the names of counsel for the parties within 30 days. ii. In default these orders shall immediately lapse. iii. The Appellant shall in any event pay the costs of the instant application to the Respondent. Orders accordingly DATED, DELIVERED AND SIGNED ON THIS 3RD AUGUST 2026. MAUREEN ONYANGO JUDGE 4 ELD ELRCA NO. E030 OF 2025 RULING https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2736/eng@2026-08-03 7

page 7 of 7