Richard Moses Wambugu v NCBA Bank Kenya PLC

(a) That there be a stay of the Judgment delivered on 23rd October, 2025, the resultant decree and taxation of costs pending the inter-partes hearing and determination of the application. (b) That there be a stay of execution of the Judgment delivered on 23rd October, 2025, the resultant decree and taxation of costs pending the hearing and determination of Nairobi Court of Appeal Civil Appeal No. 1073 of 2025. (c) That costs of the application be in the appeal. DRAFT 3. The application sets out on its face the grounds on which it is brought, and is based on the affidavit of Jackson King’ori sworn on 17th November, 2025. It is deponed in the said affidavit, inter-alia:(a) that the Respondent/Applicant was aggrieved by the Court’s Judgment delivered on 23rd October, 2025 awarding the Claimant general damages of Kshs.3,120,000/=, costs and interest; and had filed Nairobi Court of Appeal Civil Appeal No. 1073 of 2025 on 4th December, 2025. RULING Nairobi ELRC Cause No. E001 of 2021 2 of 12

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(b) that the Claimant has filed a bill of costs, and that unless stay is granted, the Respondent stands to suffer substantial loss. (c) that the Claimant had testified that he had been out of employment since November 2017, and would not have the financial means to refund the sum if paid out to him. (d) that the Claimant will not be prejudiced by a stay of execution pending appeal as the decretal sum continues to accrue interest, that the Respondent is a financially sound tier-one bank and its ability DRAFT to pay the decretal sum should the appeal fail is not in doubt. (e) that the Respondent proposes to issue a guarantee by itself within thirty days, but is nonetheless ready to abide by such conditions as to security for the due performance of the decree. 4. The application is opposed by the Claimant/Respondent. 5. On 10th February, 2026, I gave orders staying taxation herein pending hearing and determination of the application. RULING Nairobi ELRC Cause No. E001 of 2021 3 of 12

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6. Parties filed written submissions on the application pursuant to the Court’s directions in that regard. 7. 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:“(2) Rules on execution or stay of execution of DRAFT an order or decree of the Court shall be in accordance with the Civil Procedure Rules”. 8. Turning to the Civil Procedure Rules, stay of execution of the Court’s decrees 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 far as the Court appealed from may order, RULING Nairobi ELRC Cause No. E001 of 2021 4 of 12

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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 order of stay made by the Court from whose DRAFT 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 RULING Nairobi ELRC Cause No. E001 of 2021 5 of 12

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(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”. DRAFT 9. In the present case, the Respondent/Applicant is shown to have filed not only a Notice of Appeal but an appeal as well in the Court of Appeal, being Nairobi Court of Appeal Civil Appeal No. 1073 of 2025. 10. The Respondent/Applicant has offered to furnish security for due performance of the decree herein by issuing a guarantee, and to abide by such other conditions as to security for due performance of the decree. RULING Nairobi ELRC Cause No. E001 of 2021 6 of 12

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11. On the other hand, the Claimant has not demonstrated ability to refund the decretal sum herein if the same is paid out to him and the appeal already filed succeeds. The Respondent’s assertion that it stands to suffer substantial loss unless the stay sought is granted is not speculative. 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 the decretal sum over to the Respondent and DRAFT 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. E001 of 2021 7 of 12

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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 Grace Wangechi Gikuju & Another – vs – Samuel King’ori 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 (supra). The Respondent did not discharge that burden. All that he said is that he runs a RULING Nairobi ELRC Cause No. E001 of 2021 8 of 12

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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. 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 DRAFT 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 is issued (the Judgment debtor/Applicant) provides such security for due performance of the decree as may ultimately be binding on him. 15. 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. RULING Nairobi ELRC Cause No. E001 of 2021 9 of 12

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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 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. DRAFT 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 appeal, this Court has to see that the appeal, if successful, is not nugatory.” 16. In view of all the foregoing, and having considered written submissions filed on behalf of both parties, the Notice of Motion dated 17th December, 2025 is hereby allowed in the following terms:- RULING Nairobi ELRC Cause No. E001 of 2021 10 of 12

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(a) There will be a stay of execution of the Court’s decree herein pending hearing and determination of Nairobi Court of Appeal Civil Appeal No. 1073 of 2025, but on Respondent/Applicant condition deposits the that the Judgment sum of Kshs.3,120,000/= in an interest earning bank account to be held in a reputable bank jointly by Advocates for both parties, within thirty (30) days of this Ruling. (b) Failure to comply with the foregoing conditional stay order, the stay order herein issued shall DRAFT automatically lapse. (c) Costs of the application shall abide the outcome of the appeal. 17. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF OCTOBER, 2026 AGNES KITIKU NZEI RULING Nairobi ELRC Cause No. E001 of 2021 11 of 12

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JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Omondi for the Claimant Mr. Odera for the Respondent RULING Nairobi ELRC Cause No. E001 of 2021 DRAFT 12 of 12

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