The appellant filed an application dated 12 September 2025 under the provisions of sections 12 and 20 of the Employment and Labour Relations Court Act, sections 79G and 95 of the Civil Procedure Act, Order 42 rule 6, and Order 50 rule 6 read with article 159 of the Constitution.
The appellant is seeking orders to grant leave to file an appeal out of time and to stay the execution of the judgment and decree delivered on 1 August 2025 in Mombasa CMELRC No. 736 of 2021. The application is supported by the Affidavit and Supplementary Affidavit of Johnson Asega, operations manager, who avers that upon delivery of judgment in Mombasa CMELRC No. 736 of 2021 on 1 August 2025, the appellant filed an application seeking a stay of execution pending appeal and a ruling was delivered on 5 September 2025. By the time of the ruling, the statutory time within which to file an appeal had lapsed.
The appellant has since filed a Memorandum of Appeal, and unless a stay of execution is granted, the appellant will suffer irreparable loss and damage. The appellant is willing to secure the judgment through a bank guarantee.
In reply, the respondent filed a Replying Affidavit, averring that judgment was delivered on 1 August 2025 in his favour by the lower court. He has a right to enjoy the fruits of his judgment, and any delay is a delay of justice.
The appellant sought to stay the execution before the lower court. Under Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, the appeal should have been filed within the specified time frame. Save to state that the decretal sum of Ksh. 368,366.12 is high; there is no effort to satisfy the conditions for a stay or to be granted leave to appeal out of time.
The application is without merit and should be dismissed.
The judgment sought to be appealed against was delivered on 1 August 2025 in Mombasa CMELRC No. E376 of 2021. Under section 17 of the Employment and Labour Relations Court Act, there is a right of appeal. Under Rule 12(2) of the Employment and Labour Relations Court (Procedure) Rules, an appeal should be filed within 30 days from the date of the judgment:
(2) Where an appeal is from a magistrate’s court or where no
period of appeal is specified in the written law referred to in sub -r u l e
(1), the appeal shall be filed within thirty days from the date the
The decision is delivered.
In tabulating time, as this is a superior court, Order 50 of the Civil Procedure Rules applies. The court will be on vacation from 1 August 2025 to 16 September 2025. Such time is removed in tabulating time as held in St Patrick''s Hill School Ltd v Bank of Africa Kenya Ltd [2018] KEHC 4886 (KLR).
The appellant filed the instant appeal on 10 September 2025. The need to seek leave to file an appeal out of time is unnecessary.
However, where leave to file an appeal out of time is required, the ordinary practice is to file a miscellaneous application giving reasons why such leave is required and, upon the order of the court, proceed to address as directed.
In this case, the appeal is filed in time, and the appellant is seeking a stay of execution of the trial court judgment. The appellant asserts that they are aggrieved by the judgment of the trial court and the basis of the appeal. The decretal sum is high, and unless there is a stay of execution to allow the hearing and determination of the appeal, there will be irreparable loss and damage.
The applicant has offered a bank guarantee.
Having satisfied the conditions necessary under Order 42 rule 6 of the Civil Procedure Rules read together with Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, the court finds merit in the application. However, the applicant shall deposit the decretal sum of KSh. 368,366.12 in court within the next 14 days, closing on 13 November 2025.
File and the Record of Appeal within the provisions of Rule 15(2) of the Employment and Labour Relations Court (Procedure) Rules, and mention on 4 December 2025 for hearing directions.
Accordingly, the application dated 12 September 2025 is allowed on the following conditions:
- Stay of execution of the judgment in Mombasa CMELRC No. E736 of 2021 is hereby allowed on condition of a deposit of Ksh. 368,366.12 in court within the next 14 days, closing on 13 November 2025.
- File and serve Record of Appeal within the provisions of Rule 15(2) of the Court Rules.
- Costs to abide by the outcome of the appeal.
Delivered in open court at Mombasa, this 23rd day of October 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
……………………………………………… and ………………….………………………
'