A. INTRODUCTION
1. By a Notice of Motion dated 11th May 2026 and filed on even date, brought pursuant to Section 3 of the Employment and Labour Relations Court Act, Rules 21, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 50 of the Constitution of Kenya, 2010, the Appellants/Applicants ("the Applicants") moved this Honourable Court seeking, in the main, orders of stay of execution, implementation and/or enforcement of the Judgment and all consequential orders delivered by the trial court in Mombasa MCELRC Cause No. E177 of 2023; Shadrack Katana Ngombo v Rose Wang'ombe & Samuel Wang'ombe Waititu t/a Chane Print Enterprises, pending the hearing and determination of the appeal.
2. The application is premised on the grounds set out on its face and is supported by the Supporting Affidavit of ROSE WANG'OMBE sworn on 11th May 2026, to which are annexed a copy of the impugned Judgment (Exhibit RW-1) and a copy of the Memorandum of Appeal dated 4th May 2026 (Exhibit RW-2).
3. The application is opposed by the Respondent by way of Grounds of Opposition dated 19th May 2026 and filed by the firm of Obinju Rondo & Company LLP, Advocates.
4. The Court has carefully considered the Notice of Motion, the Supporting Affidavit and annexures thereto, the Grounds of Opposition, and the record as a whole, and now renders itself as follows.
B. BACKGROUND
5. The Respondent herein was the Claimant before the trial court in Mombasa MCELRC Cause No. E177 of 2023, in which he sought various reliefs arising from what he termed as his unlawful and unfair termination from employment by the Applicants. By a Judgment delivered on 17th April 2026, the trial court (Hon. Gathogo Sogomo, PM) found in favour of the Claimant/Respondent and entered judgment against the Applicants in the cumulative sum of Kshs 693,066.38, together with a certificate of service, costs and interest.
6. Aggrieved by the aforementioned judgment, the applicants submitted a Memorandum of Appeal dated 4th May 2026, expressing dissatisfaction with the entire judgment on several grounds, including the application of incorrect minimum wage rates, the invocation of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules without their explicit instructions, the denial of the right to a fair hearing pursuant to Article 50 of the Constitution, the determination of the case without an oral hearing and cross-examination on contested facts, and the grant of reliefs without adequate supporting evidence. The Record of Appeal has subsequently been filed, thereby making the appeal substantially ready for hearing.
C. THE APPLICANTS' CASE
8. The Applicants' case, as set out in the Notice of Motion and amplified in the Supporting Affidavit of Rose Wang'ombe, may be summarised as follows:
a) That the trial court delivered Judgment in Mombasa MCELRC Cause No. E177 of 2023 on 17th April 2026 against the Applicants, who are aggrieved thereby and have filed an appeal against the whole of the said decision and the consequential orders;
b) That pursuant to the Judgment, the Applicants have duly lodged a Memorandum of Appeal, signifying their intention to appeal to this Honourable Court, and that the Record of Appeal has since been filed;
c) That there exists a real and imminent risk that the Respondent may take further steps to execute or enforce the Judgment, which would occasion the Applicants financial prejudice that may be irreversible and would deny them the opportunity to pursue and benefit from the intended appeal;
d) That unless an order of stay of execution is granted, the intended appeal will be rendered nugatory, as the Respondent may proceed to execute against the Applicants, thereby defeating the ends of justice;
e) That the Applicants have an arguable appeal with high chances of success, and it would be fair and just for a stay to issue to enable them to prosecute and finalise the appeal as provided by law;
f) That no similar application for stay of execution was made before the trial court;
g) That the application has been brought promptly, without unreasonable delay, in good faith, and in the interest of justice, and it is just and equitable that it be allowed to expedite the hearing and final disposal of the appeal.
D. THE RESPONDENT'S GROUNDS OF OPPOSITION
9. The Respondent opposes the application on the Grounds of Opposition dated 19th May 2026, which may fairly be summarised under the following broad heads:
a) That the application is misconceived, incompetent, bad in law, and an abuse of the process of the Court;
b) That the Applicants have failed to satisfy the mandatory, cumulative requirements for the grant of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules, 2010, and the settled principles governing stay applications;
c) That the Applicants have failed to demonstrate that they shall suffer substantial loss unless the orders sought are granted, and that the allegations of imminent execution are false, speculative, and unsupported by any evidence, no execution proceedings having in fact been commenced and the decretal costs not having even been assessed or taxed;
d) That the Applicants have failed to offer, propose or undertake to furnish any security for the due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which omission is fatal and disentitles them to the equitable and discretionary relief sought;
e) That an intended appeal does not automatically operate as a stay of execution of a lawful judgment and decree, and that the application has been brought merely to obstruct, delay and deny the Respondent the fruits of his Judgment;
f) That the Applicants have not demonstrated that the intended appeal would be rendered nugatory in the absence of a stay, have failed to annex a draft decree or to demonstrate any inability on the part of the Respondent to refund the decretal sum, and have generally failed to place before the Court any exceptional, sufficient or justifiable grounds warranting interference with the Respondent's accrued and lawful rights under the Judgment;
g) That, in the premises, the application lacks merit and ought to be dismissed with costs to the Respondent.
E. ANALYSIS AND DETERMINATION
10. The Court has given due and anxious consideration to the rival positions taken by the parties. Three broad questions fall for determination: first, what is the applicable law and the principles governing an application for stay of execution pending appeal; second, whether the Applicants have satisfied those principles on the facts of this case; and third, what order the justice of this case demands.
The Applicable Law
11. The law governing an application for stay of execution pending appeal is well settled and is to be found under Order 42 Rule 6 of the Civil Procedure Rules, 2010, made applicable to proceedings before this Court by Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and read together with the overriding objective set out under Section 3 of the Employment and Labour Relations Court Act. Order 42 Rule 6(2) provides that no order for stay of execution shall be made unless the applicant satisfies the court that: (a) substantial loss may result to the applicant unless the order is made; (b) the application has been made without unreasonable delay; and (c) such security as the court orders for the due performance of the decree has been given by the applicant.
12. These conditions are conjunctive and not disjunctive; an applicant must satisfy all three before the discretion of the Court can be favourably exercised. This position was affirmed in Kenya Shell Limited v Kibiru & Another [1986] eKLR, where the Court of Appeal held that an applicant for stay of execution pending appeal must demonstrate that substantial loss would otherwise result, that the application was made without unreasonable delay, and that he has given or is willing to give such security as the court may order.
13. It is equally settled that the grant of stay of execution pending appeal is discretionary, and that in exercising that discretion the Court must be guided by the twin, and at times competing, principles articulated in Vishram Ravji Halai v Thornton & Turpin (1963) Limited, Civil Application No. Nai 15 of 1990 [1990] eKLR and re-echoed in Silverstein v Chesoni [2002] 1 EA 296, namely, that the Court's discretion should be so exercised as to avoid rendering the appeal, if successful, nugatory, while at the same time bearing in mind that a successful litigant is not to be deprived of the fruits of his judgment without just cause. The Court of Appeal restated this dual mandate in Butt v Rent Restriction Tribunal [1979] eKLR, observing that each case must be considered on its own facts and that the court's overriding duty is to do what is just in the circumstances.
14. As to what amounts to substantial loss, the Court in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR held that substantial loss is the cornerstone of both the jurisdiction and the discretion to grant stay, and that an applicant must by evidence demonstrate the loss that would be suffered, as opposed to relying on bare apprehension. This was amplified in Absalom Dova v Tarbo Transporters (Mombasa) Limited [2013] eKLR, where the Court held that substantial loss is often intertwined with the question whether the appeal would be rendered nugatory, and that regard must be had to, among other things, the financial position of the decree-holder and the ability of the parties to reinstate the status quo ante should the appeal succeed.
15. On the question of nugatory appeals, the Court of Appeal in Equity Bank Limited v West Link Mbo Limited [2013] eKLR held that whether an appeal would be rendered nugatory depends on whether what is likely to be lost can be reversed or adequately compensated by an award of damages, and that this must be assessed on a case-by-case basis, taking into account the means of the parties and the nature of the subject matter in dispute.
16. It is further well established that the Court, in the exercise of its overriding objective under Section 3 of the Employment and Labour Relations Court Act (which mirrors Sections 1A and 1B of the Civil Procedure Act), retains an inherent and broad discretion to grant a stay of execution on such terms as it considers just, including terms not specifically prayed for or proposed by an applicant, so as to facilitate the just, expeditious, proportionate and affordable resolution of disputes and to ensure that the ends of justice as between the parties are met, rather than sacrificed at the altar of procedural technicality.
Application of the Law to the Facts
17. Timeousness: The impugned Judgment was delivered on 17th April 2026. The Applicants lodged their Memorandum of Appeal on 4th May 2026 and filed the instant application for stay on 11th May 2026, being a period of approximately three and a half weeks from the date of Judgment, and prior to the taking of any steps in execution by the Respondent. The Court finds, and it is not seriously disputed, that the application was filed timeously and without unreasonable delay, thereby satisfying the second limb of Order 42 Rule 6(2).
18. Substantial loss and the risk of a nugatory appeal: The Respondent correctly points out that no execution proceedings have as yet been commenced and that the Applicants' apprehension of imminent execution is not anchored on any overt act by the Respondent. Ordinarily, a bare apprehension unsupported by evidence would fall short of the threshold set in James Wangalwa (supra). However, the decretal sum awarded is substantial, the Respondent is a natural person whose financial standing and capacity to refund the decretal sum, should the appeal succeed, has not been placed before the Court, and the Memorandum of Appeal raises arguable grounds touching on the propriety of the procedure adopted at trial, including the invocation of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules and the determination of contested facts without oral evidence and cross-examination. Guided by Absalom Dova and Equity Bank v West Link Mbo (supra), the Court is satisfied that, absent a stay, the Respondent would in all likelihood proceed to execute the decree, and that recovery of the decretal sum thereafter, should the appeal succeed, cannot be guaranteed. The appeal would in those circumstances be reduced to an academic exercise.
19. Readiness of the appeal: The Court notes, further, that the Record of Appeal has already been filed, rendering the intended appeal substantially ready for hearing. This is a significant factor, for it demonstrates that the Applicants have not merely sought to use the pendency of an intended appeal as a shield against execution, but have taken concrete and timely steps to prosecute the appeal to its conclusion. The justice of this matter demands that focus now be directed at the final and expeditious disposal of the appeal itself, rather than at satellite skirmishes over execution.
20. Security for due performance of the decree: The Respondent's strongest point, in the Court's view, is that the Applicants neither offered nor undertook to furnish security for the due performance of the decree as mandatorily required under Order 42 Rule 6(2)(c) of the Civil Procedure Rules, and that this omission is, on the authorities cited, ordinarily fatal to an application of this nature. The Court agrees that the furnishing of security is not a matter of discretion but a condition precedent to the grant of stay. It does not, however, follow that an application must for that reason alone be dismissed in limine. The Court of Appeal in Kenya Shell Limited v Kibiru (supra) made clear that it is open to the Court, in the proper exercise of its discretion and pursuant to the overriding objective, to impose terms as to security suo motu where it is satisfied that a conditional order will meet the justice of the case. This approach also finds resonance in Silverstein v Chesoni (supra), where the Court emphasised that the ultimate goal is to hold the balance fairly between an appellant's right to a real and unimpeded appeal and a decree-holder's right not to be kept out of the fruits of a lawful judgment for longer than is necessary. In the present matter, the Court considers it just to cure the deficiency identified by the Respondent by imposing, as a condition of stay, a specific requirement that the Applicants deposit security in a fixed sum within a stipulated period, in default of which the stay shall lapse and execution shall proceed unhindered.
Conclusion on the Merits
21. Having weighed the foregoing considerations, the Court finds that while the Applicants did not, at the time of filing, propose or undertake security as required under Order 42 Rule 6(2)(c), this deficiency is curable through the imposition of appropriate conditions, and does not, in the circumstances of this case, warrant the outright dismissal of an otherwise timeously filed application in respect of an appeal that is substantially ready for hearing. To dismiss the application outright would risk rendering the appeal nugatory and would not serve the interests of justice; conversely, to grant an unconditional stay would unjustifiably keep the Respondent out of the fruits of a lawful Judgment. The justice of this matter, in the Court's assessment, demands a conditional order of stay, carefully calibrated to protect the integrity of the appeal while safeguarding the Respondent's accrued rights under the Judgment, and to ensure that the appeal, now that the Record of Appeal has been filed, proceeds expeditiously to final disposal.
22. In the result, the Court finds that the application dated 11th May 2026 is merited to the extent, and on the conditions, set out below. It does not lack merit in its entirety, as urged by the Respondent, but it equally cannot be allowed unconditionally, as urged by the Applicants.
F. DISPOSITION
23. For the reasons set out above, the Court makes the following orders:
a) The Notice of Motion dated 11th May 2026 be and is hereby ALLOWED CONDITIONALLY on the terms set out hereunder.
b) There shall be a stay of execution, implementation and/or enforcement of the Judgment and all consequential orders delivered in Mombasa MCELRC Cause No. E177 of 2023, pending the hearing and determination of the appeal herein, subject to compliance with the conditions set out below.
c) The Applicants shall, within twenty-one (21) days of the date of this Ruling, that is to say on or before 6th August 2026, deposit the sum of Kshs 500,000/= (Kenya Shillings Five Hundred Thousand only) in Court, as security for the due performance of the decree in Mombasa MCELRC Cause No. E177 of 2023.
d) In default of the deposit of the said security within the period stipulated in Order (c) above, the stay of execution herein granted shall automatically lapse without further reference to this Court, and the Respondent shall be at liberty to execute the decree of the lower court in the ordinary course.
e) The appeal shall be canvassed by way of written submissions.
f) The Applicants shall file and serve their written submissions on the appeal within twenty-five (25) days of the date of this Ruling, that is to say on or before 10th August 2026.
g) The Respondent shall file and serve response submissions within twenty-five (25) days of receipt of the Applicants' submissions.
h) Judgment on the appeal shall be delivered on 1st October 2026.
i) Costs of this application shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16TH DAY OF JULY 2026.