REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E277 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
ROBERT MBARANI INGASIRA….…….………………………………..... PETITIONER
VERSUS
SOCIAL HEALTH AUTHORITY…..………………………………..……. RESPONDENT
RULING
Before the court for determination is the Respondent/Applicant’s Notice of Motion dated 13th April 2026 filed under Certificate of Urgency seeking orders that:
1. Spent
2. Spent
3. This Honourable court be pleased to grant a stay of execution of the Judgment delivered on 9th April 2026 and all consequential orders, pending the intended appeal.
The Motion is expressed under Article 159 of the Constitution of Kenya, Section 3A of the Civil Procedure Act Order 42, Rule 6 of the Civil Procedure Rules and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and based on the grounds set out in its face and the Supporting Affidavit of Dr Mercy Mwangangi sworn on an undisclosed dated.
The affiant depones that the orders issued on 9th April 2026 are legally and practically impossible to implement as the applicant had no statutory capability, administrative machinery or jurisdictional mandate to “facilitate deployment” of the Petitioner to the wider public services as the power fell under the purview of the public Service Commission (therein after PSC).
That implementation of the Order is fundamentally flawed because there was no employer/employee relationship between the Petitioner and the Respondent following nullification of the recruitment process in the Abdile Case and the Respondent/Applicant cannot execute employment related remedies for non-existent relationship.
The affiant deponed that the Respondent/Applicant had already filed a Notice of Appeal to appeal against the whole decision and the appeal raises weighty and arguable issues on orders incapable of performance and liability for a voided contract of employment.
That if the Orders are not granted:
a) The Respondent/Applicant will be forced into an impossible position of attempting to execute a mandate of the PSC.
b) Public funds will be disbursed irrecoverably, including the decretal sum, if the appeal succeeds.
c) The intended appeal will be rendered nugatory.
That the application was instituted promptly without unreasonable delay and in good faith.
Respondent’s Response
The Petitioner’s Replying Affidavit was sworn on 20th April 2026. The Petitioner depones that termination of employment subjected him to harsh economic times and the application for stay humiliated him further and would suffer great financial loss if the stay of execution is granted pending the hearing and determination of the intended appeal since Order 3 required “facilitation of redeployment” in the wider public service without loss of benefits until the end of contractual term.
That granting of a stay would not be in the interest of substantial justice as it would delay enjoyment of fruits of the judgement.
That the intended appeal is not arguable and that the applicant had not provided sufficient reason to warrant an order of stay.
That the application ought to be disallowed for want of merit as no security had been provided.
By a Further Affidavit sworn on 8th May 2026, Dr Mwangangi depones that the Petitioner’s averment of personal hardship neither addressed nor rebutted the legal and jurisdictional issues raised by the Applicant.
That implementation of the order on redeployment would be ultra vires the applicant.
That the Petitioner placed for evidence to show that the amount if paid would be recoverable.
That criminal proceedings had ben instituted against the Petitioner/Respondent on abuse of office and fraudulent claims, payment of approximately Kshs.17,000,000.00 and by dint of Section 62 (2) of the Anti-Corruption and Economic Crimes Act, the Petitioner remained suspended from office.
That the applicant apprehended substantial loss of public funds which justified a stay of execution.
Vide submissions dated 15th May 2026, the Applicant’s advocate relied on the provisions of order 42 Rule 6 of the Civil Procedure Rules to submit that the power of the court to grant an order of stay is discretionary as held in Butt v Rent Restriction Tribunal (1982) KLR.
Counsel urged that the applicant had fulfilled the requirements because the application was filed on 13th April 2026 after judgment was delivered on 9th April, 2026 and substantial loss had been demonstrated as regards the order of redeployment of the petitioner.
Counsel further submitted that the redeployment orders were a legal impossibility as the applicant had no legal mandate to comply with the order citing Speaker of National Assembly v Attorney General & 4 others (2013) eKLR on state organs operating within their mandate as was the decision in Republic v Kenya Revenue Authority Ex parte Yaya Towers Ltd (2008) eKLR to urge that the intended appeal rases serious constitutional and jurisdictional issues.
Counsel urged that there was no employment relationship between the Applicant and the Petitioner since the process of employment had been nullified in Abdile v Social Health Authority (SHA) & 3 others (2025) KEELRC 1552 (KLR).
Reliance was also placed on the decision in Kenya Ports Authority v Festus Kipkorir Kiprotich (2014) eKLR.
Finally, counsel submitted on the risk of irrecoverable public funds citing the decision in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another (2006) eKLR on the shifting of the burden of proof to urge that substantial loss was the cornerstone of an application for stay of execution.
Counsel urged that the balance of convenience was in favour of granting a stay and the applicant was ready and willing to comply with any reasonable conditions the court may impose.
Petitioner’s submission
Concerning meeting the criteria for grant of stay of execution, counsel submitted that the applicant had not given a valid reason or basis for the grant of stay and had not demonstrated that the Petitioner was a man of straw and would not repay the amount paid if the appeal was successful.
Counsel further urged that the applicant had not attached a draft Memorandum of Appeal or offered to provide security and the application was for dismissal with costs.
Reliance was placed on the decision in Joshua Oduru Nyaiera v Egerton University Petition No. 18 of 2018, where the applicant had not attached a draft Memorandum of Appeal and the Court dismissed the application.
The singular issue for determination is whether the applicant’s Notice of Motion for stay of execution pending appeal is merited.
The principles that govern the grant or refusal of stay of execution pending appeal are well settled.
Order 42 Rule 6 of the Civil Procedure Rules provides:
(1) …
(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 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.
Significantly, the grant of the order of stay of execution or refusal involves the exercise of judicial discretion as held in Butt v Rent Restriction Tribunal (Supra). Such discretion must be exercised judiciously.
On timeliness of filing of the application, it is not in dispute that the applicant acted timeously as the application was filed within a few days of delivery of the judgment. Nothing turns on this requirement.
As regards substantial loss, while the applicant maintains that it would suffer substantial loss on account of what it considers an unimplementable order of the court as it was outside its mandate and jurisdiction, and public resources may be irrecoverable from the petitioner, the petitioner urged that granting the order would not be in the interest of substantial justice, the appeal was not arguable and no draft Memorandum of Appeal had be provide.
Strangely, the petitioner did not aver and counsel did not submit that the petitioner would be in a position to repay the decretal sum if the appeal was saucerful.
In determining this issue of substantial loss the court is guided by the sentiments of the Court of Appeal in Kenya Shell Ltd v Benjamin Karuga Kibiru & another (1982-1988) KAR 1018 as follows:
“It is usually a good rule to see if order 41 Rules 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.”
Substantial loss has been described as a qualitative in nature. From the averments by the applicant, the court is satisfied that it will suffer substantial loss if the order of stay of execution pending appeal is not granted. There is need to maintain the status quo.
Finally, the applicant is required to provide security for due performance of the decree and the security provided must be adequate. Although the applicant did not offer any form of security vide the Support Affidavit the omission is not fatal to the application.
Significantly, the applicant’s submissions indicated that the applicant was ready and willing to comply with any reasonable conditions to court may impose. More significantly, the court has discretion to determine the form of security to be provided.
See Afyare Enterprises Co. Ltd v Nyaribo t/a I. N Nyaribo & Co. Advocates (2025) KECA 1819 (KLR).
The upshot of the foregoing is that, the applicant’s motion is allowed in the following terms:
(a) Stay of execution pending appeal be and is hereby granted PROVIDED.
(b) The Applicant/Respondent deposits the entire decretal sum in court or provides a bank guarantee for the decretal sum within 30 days from the date hereof failing which the petitioner shall be at liberty to execute the decree.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 9TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI – PET E277 OF 20252 OF 7 |