1. Vide a Notice of Motion application dated 20th November, 2025 the Appellant seeks the following orders:
a) Spent.
b) THAT there be a stay of execution of the judgement and decree delivered on 20/05/2025 requiring the applicant to pay Kshs 315,000/= pending the hearing and determination of the Application herein.
c) THAT there be a stay of execution of the judgement and decree delivered on 20/05/2025 requiring the applicant to pay Kshs 315,000/= pending the hearing and determination of this appeal.
d) THAT the auctioneers be restrained, whether by themselves, agents, servants, or otherwise, from attaching, selling, or in any way interfering with the Applicants property.
e) THAT the costs of this application be provided for.
2. The grounds in support of the application are that:
a) Judgement was delivered on 20/05/2025 against the Applicant, requiring him to pay Kshs 315,000/=.
b) The Appellant has already filed an appeal challenging the said judgement.
c) Unless stay of execution is granted, the Respondent is likely to commence execution at any time, thereby rendering the appeal nugatory and exposing the Applicant to substantial and irreparable loss.
d) The Application has been brought without unreasonable delay, having been filed immediately upon the dismissal of the stay application by the trial court.
e) The Applicant is ready, willing and able to furnish reasonable security as this Honourable Court may deem fit for the due performance of the decree.
f) The Applicant had previously sought stay on similar grounds before the trial court, which application was dismissed.
g) The Applicant now invokes this Honourable Court's independent and original jurisdiction under Section 12(3)(viii) of the ELRC Act, Rule 29 of the ELRC Rules, and Order 42 Rule 6 to consider the matter afresh.
h) This Honourable Court has wide discretion to grant stay under Section 12(3)(v) & (viii) of the ELRC Act, Rules 17 & 29 of the ELRC Rules, and the inherent powers of the Court.
i) It is in the interests of justice that execution be stayed to preserve the subject matter pending appeal.
j) Unless the orders sought are granted, the Respondent through his auctioneers is likely to proceed with attachment and execution which will render the appeal nugatory.
k) The Applicant will suffer substantial loss if execution proceeds, including loss of property and irreparable harm.
l) It is in the interest of justice that this application be allowed.
m) The application herein has been made without delay and is merited.
3. The application is brought under Rule 17 and 29 of the Employment and Labour Relations Court (Procedure) Rules, 2016, section 12(3)(v) of the Employment and Labour Relations Court Act, Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law.
4. The Application is supported by the grounds on the face thereof and the supporting affidavit of BENSON GITERU MUCHOMBA, the Appellant, sworn on 20th November, 2025.
5. In summary, the Applicant is aggrieved by the judgment of Hon. C.N. Njalale, PM delivered on 20th May, 2025 in KITALE MCELRC SUIT NO. E015 OF 2022 JOHN SILUNGAI V BENSON GITERU MUCHOMBA.
6. The Applicant states that he has lodged an appeal challenging the said judgment. That unless stay of execution is granted the Respondent has commenced execution process and has caused proclamation notices to be served upon the Appellant by Igare Auctioneers.
7. The Appellant states that he lodged an application for stay of execution at the trial court which was dismissed on procedural issues vide a ruling delivered on 18th November, 2025, that the delay in filing the application was occasioned by his illness resulting in financial constraints but he took steps to file the application as soon as he was able.
8. The Respondent opposes the application through his replying affidavit sworn on 21st February, 2026 in which he deposes that the application is without merit, frivolous, vexatious and meant to waste the court’s precious time, that the Appellant is hell bent to frustrate and delay the execution of the judgment of the trial court, that the Appellant filed the instant appeal on 23rd June, 2025 but did not serve the Respondent until the proclamation notice dated 26th September, 2025 was served upon him, that the appeal does not raise any substantive issues of law to warrant this court’s grant of the orders sought.
9. The Respondent deposes that the Appellant has not taken any steps to prosecute the appeal since it was lodged and the Respondent only came to know about it from the copy of Memorandum of Appeal annexed to the Appellants supporting affidavit in the instant application for stay of execution.
10. The Respondent prays that the application be dismissed with costs.
11. Upon being served with the Replying Affidavit of the Respondent the Appellant filed a Further Affidavit in which he deposes that that the averments of the Respondent to the effect that he is hell bent on frustrating the Respondent are false and misleading and made in bad faith.
12. The Appellant deposes that he has at all material times demonstrated the willingness to comply with the orders of the court and duly deposited the ordered sum within the stipulated period and therefore cannot be accused of bad faith.
13. The Appellant deposes that the appeal has high chances of success, that it is his constitutional right to appeal and that the Respondents allegations that he was not served with the Memorandum of Appeal until the Appellant was served with Proclamation Notice is unfounded. The Appellant further deposes that service of a Memorandum of Appeal is not a mandatory precondition to seeking stay under Order 42 Rule 6
14. The application was disposed of by way of written submissions.
15. In its undated submissions, the Appellant sets out the issues for determination to be:
i. Whether the Appellant has established sufficient cause for grant of stay pending appeal
ii. Whether the Applicant shall suffer substantial loss if stay is denied
iii. Whether the Applicant has furnished security for due performance of the decree
16. On the first issue the Applicant submits that the principles for grant of stay of execution are derivatives of Order 42 of the Civil Procedure Rules being that the Applicant should satisfy the court that substantial loss may be occasioned, the application should be made without unreasonable delay and lastly the provision of sufficient security by the Applicant.
17. The Applicant submits that these principles have been discussed in many cases, among them Mukuma v Abuoga (1988) KLR 645; Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others (2013) eKLR; Tabro Transporters Ltd v Absalom Dova Lumba (2012) eKLR; and Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others (2010) eKLR.
18. On the second issue the Applicant submits that there was delay of 5 months in bringing the application which was not inordinate in the circumstances as he has sufficiently explained. Further, that delay alone cannot defeat an otherwise meritorious application where no prejudice has been demonstrated. The Applicant further submits that it moved court before execution could be finalized.
19. On substantial loss the Applicant submits that unless stay is granted execution shall proceed and the intended appeal shall be rendered nugatory. Further, that the decretal sum is substantial and there is no guarantee that the Respondent would refund the same should the appeal succeed, while on the contrary the Respondent does not have assets to cover the decree in the event execution proceeds and he may disappear with the money to an unknown place. The Applicant relies on the decision in Kenya Shell Limited v Benjamin Karuga Kibiru & another (1986) KLR 410.
20. On whether security has been provided the Applicant submits that he has already complied with the condition imposed by the court by depositing half the decretal amount, which is a demonstration of good faith and willingness to abide by any further orders of the court.
21. The Applicant further submits that the intended appeal raised arguable issues of law and fact deserving consideration by the appellate court. That at this stage the court is not required to determine whether the merits of the appeal conclusively but only ascertain whether the appeal is arguable and not frivolous.
22. The Respondent filed submissions dated 18th May, 2026 in which he reiterates that the application is without merit, is frivolous and vexatious and only meant to scuttle the process of execution that had been set in motion prior to the Applicant’s application. That the Applicant has not advanced any proper and convincing reason why he waited for 5 months and only woke up when he realized execution process had reached an advanced stage.
23. It is submitted that the Applicant was represented by counsel who was in a position to advise him of consequences of failing to move court in time for stay of execution. That equity aids the vigilant and not the indolent.
24. It is the submission of the Respondent that Order 42 of the Civil Procedure Rules gives clear provision regarding granting of an order for stay. He urged the court to dismiss the application with costs.
Analysis and Determination
25. Having considered the rival submissions of the parties in respect to the application before me for determination it is my view that the only issue for determination is whether stay of execution pending appeal should be granted to the Applicant.
26. Stay of execution pending appeal is elaborately provided for in Order 42 Rule 6 of the Civil Procedure Rules as follows: -
Order 42 Rule 6.
1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so 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 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 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.
27. The principles for grant of stay of execution are thus proof of substantial loss, unreasonable delay and security for due performance of the decree. The court is also enjoined to ensure sufficient cause for grant of such orders.
28. In Butt v Rent Restriction Tribunal (1982) KLR the Court gave guidance on how the court’s discretion should be exercised as follows –
“1. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
29. In Antoine Ndiaye v African Virtual University (2015) eKLR the court opined -
“…stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules…”
30. Ringera J in Lalji Bhimji put it succinctly when he stated thus:
“...he (the applicant) must persuade the Court that the decree holder is a man of straw from whom it will be nigh to impossible or at least very difficult to obtain back the decretal amount in the event the intended appeal succeeding. Such persuasion must spring from affidavits or evidence on record."
31. In M/S Portreitz Maternity v James Karanja Kabia – Civil Appeal No.6 of 1997 the Court stated that:
“The right of appeal must be balanced against an equally weighty right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”
32. As is provided in Order 42 Rule 6(2), the purpose of security is to ensure due performance of the decree should the appeal not succeed. It is also intended to act as a sign of good faith to deter litigants who may file appeal only for the purpose of delaying the successful litigant from enjoying the fruits of his appeal, hence the requirement for the court to ensure sufficient cause and equity in granting orders of stay.
33. In the instant application, the Applicant originally sought stay of execution at the trial court by his application dated 29th September, 2025. The application was declined on grounds that he failed to satisfy 2 conditions; substantial loss and failure to explain delay in filing the application of more than 4 months.
34. The jurisdiction to grant stay pending appeal is vested in both the trial court and the appellate court. An applicant whose application for stay pending appeal is denied by the trial court has a right to file a similar application in the appellate court.
35. Rule 21 of the Employment and Labour Relations Court (Procedure) Rules 2024 provides as follows:
(1) Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court.
(2) An application for stay of execution pending appeal shall be filed in the appeal file.
36. In the instant case the Applicant is guilty of many mistakes. First, it did not serve the Memorandum of Appeal upon the Respondent and he does not apologize for it. Instead he conceitedly asserts that service of a Memorandum of Appeal is NOT a mandatory precondition to seeking stay under Order 42 Rule 6 of the Civil Procedure Rules, (and he used bold caps in making the assertion at paragraph 12 of his submissions).
37. This is of course not correct as the rules of this court demand in mandatory terms that a Memorandum of Appeal is served in 21 days. Rule 13 provides:
A memorandum of appeal shall be served upon the respondent within twenty-one days from the date of filing.
38. I however note that on 24th February, 2026 the Applicant explained that it had been effecting service upon the Respondent’s agent as it did not have the Respondent’s contacts. The court notes that the Respondent is acting in person and that the Respondent gave his contacts to the Appellant in court on the said date.
39. On delay, the court notes that the application for stay in the trial court was filed after more than 4 months from the time of delivery of judgment and after execution process commenced. Order 42 Rule 6 requires that the application is filed without undue delay and in the event of delay the cause thereof is explained to the satisfaction of the court.
40. The explanation given by the Applicant is that the delay was not deliberate nor due to negligence. That the delay was occasioned by illness resulting into financial constraints but he filed the application as soon as he was able.
41. As to whether the appeal may or may not be successful, that is to be determined at the hearing of the appeal. At this stage the court ought only to be satisfied that the appeal is not frivolous. I have scrutinised the grounds in the Memorandum of Appeal and I am satisfied that the appeal is not frivolous as it raises weighty issues for consideration by the court.
42. On deposit of security the Applicant has stated he is willing to comply with orders of the court in respect thereto. He has further deposed and submitted that he already demonstrated good faith by complying with orders of the court to deposit half the decretal sum. I have however not had sight of the said order or seen proof of the deposit, although I note the Respondent did not deny the said averments.
43. Rule 80 of the Employment and Labour Relations Court (Procedure) Rules provides that he Court may, upon application or on its own motion, extend any time prescribed under these Rules or such time as may be stipulated in an order of the Court.
44. Having considered the application, the replying affidavit and submissions, it is my view that the ends of justice would best be served by allowing the application. This is because the Respondent has not indicated that he would be in a position to refund the decretal sum should execution be allowed to proceed. I have further noted from the proclamation that what was proclaimed included household furniture and electronics, business assets and stock, livestock and motor vehicles. If execution is allowed to proceed the Applicant is likely to suffer irreparable loss as he would be affected both at domestic level and in his business. Further, as I have already mentioned, the Applicant has stated that he has already deposited half the decretal sum as a sign of good faith.
45. For these reasons I make the following orders in respect of the orders sought in the application dated 20th November, 2025:
a. There shall be stay of execution of the judgment of Hon. Hon. C.N. Njalale, PM delivered on 20th May, 2025 in KITALE MCELRC SUIT NO. E015 OF 2022 JOHN SILUNGAI V BENSON GITERU MUCHOMBA.
b. The stay shall be conditional upon the Appellant depositing 50% of the decretal sum in court within 30 days.
c. The Applicant shall in any event bear the Respondent’s costs of this application which in view of the fact that the Respondent is acting in person, the court has assessed in the sum of Kshs. 10,000 to be paid within 30 days.
46. Orders accordingly.
DATED, DELIVERED AND SIGNED AT ELDORET
THIS 23RD DAY OF JULY, 2026.
a) Spent.
b) THAT there be a stay of execution of the judgement and decree delivered on 20/05/2025 requiring the applicant to pay Kshs 315,000/= pending the hearing and determination of the Application herein.
c) THAT there be a stay of execution of the judgement and decree delivered on 20/05/2025 requiring the applicant to pay Kshs 315,000/= pending the hearing and determination of this appeal.
d) THAT the auctioneers be restrained, whether by themselves, agents, servants, or otherwise, from attaching, selling, or in any way interfering with the Applicants property.
e) THAT the costs of this application be provided for.
2. The grounds in support of the application are that:
a) Judgement was delivered on 20/05/2025 against the Applicant, requiring him to pay Kshs 315,000/=.
b) The Appellant has already filed an appeal challenging the said judgement.
c) Unless stay of execution is granted, the Respondent is likely to commence execution at any time, thereby rendering the appeal nugatory and exposing the Applicant to substantial and irreparable loss.
d) The Application has been brought without unreasonable delay, having been filed immediately upon the dismissal of the stay application by the trial court.
e) The Applicant is ready, willing and able to furnish reasonable security as this Honourable Court may deem fit for the due performance of the decree.
f) The Applicant had previously sought stay on similar grounds before the trial court, which application was dismissed.
g) The Applicant now invokes this Honourable Court's independent and original jurisdiction under Section 12(3)(viii) of the ELRC Act, Rule 29 of the ELRC Rules, and Order 42 Rule 6 to consider the matter afresh.
h) This Honourable Court has wide discretion to grant stay under Section 12(3)(v) & (viii) of the ELRC Act, Rules 17 & 29 of the ELRC Rules, and the inherent powers of the Court.
i) It is in the interests of justice that execution be stayed to preserve the subject matter pending appeal.
j) Unless the orders sought are granted, the Respondent through his auctioneers is likely to proceed with attachment and execution which will render the appeal nugatory.
k) The Applicant will suffer substantial loss if execution proceeds, including loss of property and irreparable harm.
l) It is in the interest of justice that this application be allowed.
m) The application herein has been made without delay and is merited.
3. The application is brought under Rule 17 and 29 of the Employment and Labour Relations Court (Procedure) Rules, 2016, section 12(3)(v) of the Employment and Labour Relations Court Act, Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law.
4. The Application is supported by the grounds on the face thereof and the supporting affidavit of BENSON GITERU MUCHOMBA, the Appellant, sworn on 20th November, 2025.
5. In summary, the Applicant is aggrieved by the judgment of Hon. C.N. Njalale, PM delivered on 20th May, 2025 in KITALE MCELRC SUIT NO. E015 OF 2022 JOHN SILUNGAI V BENSON GITERU MUCHOMBA.
6. The Applicant states that he has lodged an appeal challenging the said judgment. That unless stay of execution is granted the Respondent has commenced execution process and has caused proclamation notices to be served upon the Appellant by Igare Auctioneers.
7. The Appellant states that he lodged an application for stay of execution at the trial court which was dismissed on procedural issues vide a ruling delivered on 18th November, 2025, that the delay in filing the application was occasioned by his illness resulting in financial constraints but he took steps to file the application as soon as he was able.
8. The Respondent opposes the application through his replying affidavit sworn on 21st February, 2026 in which he deposes that the application is without merit, frivolous, vexatious and meant to waste the court’s precious time, that the Appellant is hell bent to frustrate and delay the execution of the judgment of the trial court, that the Appellant filed the instant appeal on 23rd June, 2025 but did not serve the Respondent until the proclamation notice dated 26th September, 2025 was served upon him, that the appeal does not raise any substantive issues of law to warrant this court’s grant of the orders sought.
9. The Respondent deposes that the Appellant has not taken any steps to prosecute the appeal since it was lodged and the Respondent only came to know about it from the copy of Memorandum of Appeal annexed to the Appellants supporting affidavit in the instant application for stay of execution.
10. The Respondent prays that the application be dismissed with costs.
11. Upon being served with the Replying Affidavit of the Respondent the Appellant filed a Further Affidavit in which he deposes that that the averments of the Respondent to the effect that he is hell bent on frustrating the Respondent are false and misleading and made in bad faith.
12. The Appellant deposes that he has at all material times demonstrated the willingness to comply with the orders of the court and duly deposited the ordered sum within the stipulated period and therefore cannot be accused of bad faith.
13. The Appellant deposes that the appeal has high chances of success, that it is his constitutional right to appeal and that the Respondents allegations that he was not served with the Memorandum of Appeal until the Appellant was served with Proclamation Notice is unfounded. The Appellant further deposes that service of a Memorandum of Appeal is not a mandatory precondition to seeking stay under Order 42 Rule 6
14. The application was disposed of by way of written submissions.
15. In its undated submissions, the Appellant sets out the issues for determination to be:
i. Whether the Appellant has established sufficient cause for grant of stay pending appeal
ii. Whether the Applicant shall suffer substantial loss if stay is denied
iii. Whether the Applicant has furnished security for due performance of the decree
16. On the first issue the Applicant submits that the principles for grant of stay of execution are derivatives of Order 42 of the Civil Procedure Rules being that the Applicant should satisfy the court that substantial loss may be occasioned, the application should be made without unreasonable delay and lastly the provision of sufficient security by the Applicant.
17. The Applicant submits that these principles have been discussed in many cases, among them Mukuma v Abuoga (1988) KLR 645; Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others (2013) eKLR; Tabro Transporters Ltd v Absalom Dova Lumba (2012) eKLR; and Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others (2010) eKLR.
18. On the second issue the Applicant submits that there was delay of 5 months in bringing the application which was not inordinate in the circumstances as he has sufficiently explained. Further, that delay alone cannot defeat an otherwise meritorious application where no prejudice has been demonstrated. The Applicant further submits that it moved court before execution could be finalized.
19. On substantial loss the Applicant submits that unless stay is granted execution shall proceed and the intended appeal shall be rendered nugatory. Further, that the decretal sum is substantial and there is no guarantee that the Respondent would refund the same should the appeal succeed, while on the contrary the Respondent does not have assets to cover the decree in the event execution proceeds and he may disappear with the money to an unknown place. The Applicant relies on the decision in Kenya Shell Limited v Benjamin Karuga Kibiru & another (1986) KLR 410.
20. On whether security has been provided the Applicant submits that he has already complied with the condition imposed by the court by depositing half the decretal amount, which is a demonstration of good faith and willingness to abide by any further orders of the court.
21. The Applicant further submits that the intended appeal raised arguable issues of law and fact deserving consideration by the appellate court. That at this stage the court is not required to determine whether the merits of the appeal conclusively but only ascertain whether the appeal is arguable and not frivolous.
22. The Respondent filed submissions dated 18th May, 2026 in which he reiterates that the application is without merit, is frivolous and vexatious and only meant to scuttle the process of execution that had been set in motion prior to the Applicant’s application. That the Applicant has not advanced any proper and convincing reason why he waited for 5 months and only woke up when he realized execution process had reached an advanced stage.
23. It is submitted that the Applicant was represented by counsel who was in a position to advise him of consequences of failing to move court in time for stay of execution. That equity aids the vigilant and not the indolent.
24. It is the submission of the Respondent that Order 42 of the Civil Procedure Rules gives clear provision regarding granting of an order for stay. He urged the court to dismiss the application with costs.
Analysis and Determination
25. Having considered the rival submissions of the parties in respect to the application before me for determination it is my view that the only issue for determination is whether stay of execution pending appeal should be granted to the Applicant.
26. Stay of execution pending appeal is elaborately provided for in Order 42 Rule 6 of the Civil Procedure Rules as follows: -
Order 42 Rule 6.
1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so 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 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 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.
27. The principles for grant of stay of execution are thus proof of substantial loss, unreasonable delay and security for due performance of the decree. The court is also enjoined to ensure sufficient cause for grant of such orders.
28. In Butt v Rent Restriction Tribunal (1982) KLR the Court gave guidance on how the court’s discretion should be exercised as follows –
“1. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
29. In Antoine Ndiaye v African Virtual University (2015) eKLR the court opined -
“…stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules…”
30. Ringera J in Lalji Bhimji put it succinctly when he stated thus:
“...he (the applicant) must persuade the Court that the decree holder is a man of straw from whom it will be nigh to impossible or at least very difficult to obtain back the decretal amount in the event the intended appeal succeeding. Such persuasion must spring from affidavits or evidence on record."
31. In M/S Portreitz Maternity v James Karanja Kabia – Civil Appeal No.6 of 1997 the Court stated that:
“The right of appeal must be balanced against an equally weighty right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”
32. As is provided in Order 42 Rule 6(2), the purpose of security is to ensure due performance of the decree should the appeal not succeed. It is also intended to act as a sign of good faith to deter litigants who may file appeal only for the purpose of delaying the successful litigant from enjoying the fruits of his appeal, hence the requirement for the court to ensure sufficient cause and equity in granting orders of stay.
33. In the instant application, the Applicant originally sought stay of execution at the trial court by his application dated 29th September, 2025. The application was declined on grounds that he failed to satisfy 2 conditions; substantial loss and failure to explain delay in filing the application of more than 4 months.
34. The jurisdiction to grant stay pending appeal is vested in both the trial court and the appellate court. An applicant whose application for stay pending appeal is denied by the trial court has a right to file a similar application in the appellate court.
35. Rule 21 of the Employment and Labour Relations Court (Procedure) Rules 2024 provides as follows:
(1) Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court.
(2) An application for stay of execution pending appeal shall be filed in the appeal file.
36. In the instant case the Applicant is guilty of many mistakes. First, it did not serve the Memorandum of Appeal upon the Respondent and he does not apologize for it. Instead he conceitedly asserts that service of a Memorandum of Appeal is NOT a mandatory precondition to seeking stay under Order 42 Rule 6 of the Civil Procedure Rules, (and he used bold caps in making the assertion at paragraph 12 of his submissions).
37. This is of course not correct as the rules of this court demand in mandatory terms that a Memorandum of Appeal is served in 21 days. Rule 13 provides:
A memorandum of appeal shall be served upon the respondent within twenty-one days from the date of filing.
38. I however note that on 24th February, 2026 the Applicant explained that it had been effecting service upon the Respondent’s agent as it did not have the Respondent’s contacts. The court notes that the Respondent is acting in person and that the Respondent gave his contacts to the Appellant in court on the said date.
39. On delay, the court notes that the application for stay in the trial court was filed after more than 4 months from the time of delivery of judgment and after execution process commenced. Order 42 Rule 6 requires that the application is filed without undue delay and in the event of delay the cause thereof is explained to the satisfaction of the court.
40. The explanation given by the Applicant is that the delay was not deliberate nor due to negligence. That the delay was occasioned by illness resulting into financial constraints but he filed the application as soon as he was able.
41. As to whether the appeal may or may not be successful, that is to be determined at the hearing of the appeal. At this stage the court ought only to be satisfied that the appeal is not frivolous. I have scrutinised the grounds in the Memorandum of Appeal and I am satisfied that the appeal is not frivolous as it raises weighty issues for consideration by the court.
42. On deposit of security the Applicant has stated he is willing to comply with orders of the court in respect thereto. He has further deposed and submitted that he already demonstrated good faith by complying with orders of the court to deposit half the decretal sum. I have however not had sight of the said order or seen proof of the deposit, although I note the Respondent did not deny the said averments.
43. Rule 80 of the Employment and Labour Relations Court (Procedure) Rules provides that he Court may, upon application or on its own motion, extend any time prescribed under these Rules or such time as may be stipulated in an order of the Court.
44. Having considered the application, the replying affidavit and submissions, it is my view that the ends of justice would best be served by allowing the application. This is because the Respondent has not indicated that he would be in a position to refund the decretal sum should execution be allowed to proceed. I have further noted from the proclamation that what was proclaimed included household furniture and electronics, business assets and stock, livestock and motor vehicles. If execution is allowed to proceed the Applicant is likely to suffer irreparable loss as he would be affected both at domestic level and in his business. Further, as I have already mentioned, the Applicant has stated that he has already deposited half the decretal sum as a sign of good faith.
45. For these reasons I make the following orders in respect of the orders sought in the application dated 20th November, 2025:
a. There shall be stay of execution of the judgment of Hon. Hon. C.N. Njalale, PM delivered on 20th May, 2025 in KITALE MCELRC SUIT NO. E015 OF 2022 JOHN SILUNGAI V BENSON GITERU MUCHOMBA.
b. The stay shall be conditional upon the Appellant depositing 50% of the decretal sum in court within 30 days.
c. The Applicant shall in any event bear the Respondent’s costs of this application which in view of the fact that the Respondent is acting in person, the court has assessed in the sum of Kshs. 10,000 to be paid within 30 days.
46. Orders accordingly.
DATED, DELIVERED AND SIGNED AT ELDORET
THIS 23RD DAY OF JULY, 2026.