1. Introduction
1.1 Before this Court is the Applicants’ Notice of Motion dated 14th October 2025. The Applicants seek, inter alia, leave to lodge an appeal out of time against the judgment delivered on 20th September 2023 in Mombasa Small Claims Court Commercial Case No. E512 of 2023 and orders staying the use, reliance upon, or implementation of the said judgment and the remarks contained therein, pending the hearing and determination of the intended appeal.
1.3 The Application is supported by affidavits sworn on behalf of the Applicants and is opposed through Grounds of Opposition and a Supporting Affidavit filed by the Respondent.
2. Background
2.1 Judgment in Mombasa SCC COMM No. E512 of 2023 was delivered on 20th September 2023. The Respondent’s claim was dismissed in its entirety and no decree or executable order was issued against the Applicants.
2.2 Although the claim was dismissed, the trial court made certain incidental remarks touching on alleged impropriety. Those remarks were not framed as issues for determination, were not supported by pleaded facts or tested evidence, and were not translated into any finding of liability against the Applicants.
2.3 The Applicants aver that notwithstanding their success in the suit, the incidental remarks in the judgment have subsequently been relied upon by their employer as the sole basis for instituting disciplinary proceedings.
2.4 By the time this Application was heard, the 1st Applicant had already undergone a disciplinary process, the 2nd Applicant had been subjected to disciplinary proceedings and was awaiting a verdict, while the 3rd Applicant had since retired from employment.
2.5 The Applicants contend that unless this Court intervenes to preserve the subject matter of the intended appeal, the appeal will be rendered academic as the impugned remarks will continue to be treated as definitive findings despite being challenged on appeal.
3. The Respondent’s Position
3.1 The Respondent opposes the Application on grounds that it was filed more than two years after delivery of judgment without justification; that it is frivolous, vexatious, procedurally defective and an abuse of the court process; and that the Applicants, having been successful litigants, have no basis to appeal.
3.2 The Respondent further contends that the dispute is essentially an employment dispute falling within the jurisdiction of the Employment and Labour Relations Court, and that the Applicants are improperly seeking orders affecting third parties who were not parties to the suit.
4. Issues for Determination
4.1 Having considered the pleadings, affidavits and submissions on record, the Court finds that the following issues arise for determination:
(a) Whether this Court has jurisdiction to grant the orders sought; (b) Whether the Applicants have met the threshold for grant of stay limited to the use and reliance on the impugned judgment; (c) Whether leave to appeal out of time should be granted.
5. Jurisdiction
5.1 This Court is alive to the objection that the disciplinary proceedings complained of arise from an employment relationship and that labour disputes ordinarily fall within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act.
5.2 However, the Application before this Court does not seek a determination of employment rights, nor does it seek to set aside, vary, stay or interfere with any disciplinary decision already made by the employer. The employer is not a party to these proceedings and no coercive orders are sought against it.
5.3 The jurisdiction invoked is appellate and supervisory in nature, flowing from the High Court’s mandate to hear appeals from the Small Claims Court under the Small Claims Court Act and its inherent jurisdiction to preserve the integrity and utility of an intended appeal.
5.4 The narrow question before this Court is whether remarks contained in a subordinate court judgment, which remarks are challenged on appeal, may continue to be relied upon as definitive findings while the legality and propriety of those remarks remain unresolved on appeal.
5.5 To that extent, the Court is satisfied that it has jurisdiction to regulate the use and consequences of its own appellate process. Any effect on disciplinary proceedings is incidental and does not amount to an intrusion into the exclusive jurisdiction of the Employment and Labour Relations Court.
6. Whether the Applicants Have Met the Threshold for Stay
6.1 The purpose of a stay pending appeal is to preserve the subject matter so that the right of appeal is not rendered illusory. The guiding consideration is whether refusal to grant stay would render the intended appeal nugatory.
6.2 It is common ground that the Respondent’s claim before the Small Claims Court was dismissed. The judgment did not result in any adverse decree against the Applicants.
6.3 The remarks complained of were not part of the ratio decidendi of the judgment and were not translated into any operative finding. It is trite that obiter dicta or incidental observations do not carry binding force.
6.4 The Applicants have demonstrated, on a prima facie basis, that the impugned remarks are being treated as definitive findings notwithstanding that they were not founded on pleaded issues or tested evidence.
6.5 This Court is persuaded by the reasoning in Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR), where it was held that incidental remarks not essential to a court’s determination cannot constitute binding findings capable of grounding subsequent sanctions.
6.6 The Applicants face real and irreversible consequences if the impugned remarks continue to be relied upon as conclusive while under appellate challenge. Conversely, the Respondent stands to suffer no prejudice, the judgment having conferred no enforceable benefit upon him.
6.7 The Court is therefore satisfied that a limited stay is necessary to preserve the subject matter of the intended appeal. This stay shall not disturb or reverse any disciplinary decisions already taken, but shall operate prospectively to restrain further reliance on the impugned judgment as a definitive basis for adverse action pending appeal.
7. Whether Leave to Appeal Out of Time Should Be Granted
7.1 The principles governing extension of time are well settled and include consideration of the length of delay, the reason for the delay, the arguability of the intended appeal and the prejudice to the opposing party.
7.2 The Applicants were successful litigants before the Small Claims Court and no adverse decree was issued against them. There was therefore no immediate reason to lodge an appeal.
7.3 The Applicants have satisfactorily explained that the need to appeal only arose when the incidental remarks in the judgment were later relied upon to their detriment in disciplinary proceedings. Upon discovery of this development, the Applicants moved the Court without undue delay.
7.4 The intended appeal raises arguable questions, including whether the Small Claims Court acted within its jurisdiction in making remarks of a criminal nature absent pleadings and evidence.
7.5 The Respondent will suffer no prejudice if time is enlarged, while refusal to enlarge time would permanently shut out the Applicants from appellate recourse.
7.6 In the circumstances, the Court is satisfied that the delay is excusable and that a proper case has been made for enlargement of time.
8. Conclusion and Orders
8.1 For the foregoing reasons, the Notice of Motion dated 14th October 2025 is merited.
8.2 Accordingly, the Court makes the following orders:
(a) The Applicants are granted leave to file and serve their Memorandum of Appeal against the judgment delivered on 20th September 2023 in Mombasa SCC COMM No. E512 of 2023 out of time. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.
(b) Pending the hearing and determination of the intended appeal, there shall be a stay of the use, reliance upon, implementation or enforcement of the judgment delivered on 20th September 2023 in Mombasa SCC COMM No. E512 of 2023, and in particular the incidental remarks contained therein, as definitive findings capable of grounding adverse action.
(c) For avoidance of doubt, nothing in this Order shall be construed as setting aside, staying, reversing or interfering with any disciplinary decisions already made by the Applicants’ employer.
(d) Costs of the Application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17 TH DAY OF DECEMBER 2025.
WENDY KAGENDO
JUDGE
PRESENT:
FOR THE APPLICANT: MR KILONZO
THE RESPONDENT IN PERSON
BEBORA COURT ASSISTANT
1.1 Before this Court is the Applicants’ Notice of Motion dated 14th October 2025. The Applicants seek, inter alia, leave to lodge an appeal out of time against the judgment delivered on 20th September 2023 in Mombasa Small Claims Court Commercial Case No. E512 of 2023 and orders staying the use, reliance upon, or implementation of the said judgment and the remarks contained therein, pending the hearing and determination of the intended appeal.
1.3 The Application is supported by affidavits sworn on behalf of the Applicants and is opposed through Grounds of Opposition and a Supporting Affidavit filed by the Respondent.
2. Background
2.1 Judgment in Mombasa SCC COMM No. E512 of 2023 was delivered on 20th September 2023. The Respondent’s claim was dismissed in its entirety and no decree or executable order was issued against the Applicants.
2.2 Although the claim was dismissed, the trial court made certain incidental remarks touching on alleged impropriety. Those remarks were not framed as issues for determination, were not supported by pleaded facts or tested evidence, and were not translated into any finding of liability against the Applicants.
2.3 The Applicants aver that notwithstanding their success in the suit, the incidental remarks in the judgment have subsequently been relied upon by their employer as the sole basis for instituting disciplinary proceedings.
2.4 By the time this Application was heard, the 1st Applicant had already undergone a disciplinary process, the 2nd Applicant had been subjected to disciplinary proceedings and was awaiting a verdict, while the 3rd Applicant had since retired from employment.
2.5 The Applicants contend that unless this Court intervenes to preserve the subject matter of the intended appeal, the appeal will be rendered academic as the impugned remarks will continue to be treated as definitive findings despite being challenged on appeal.
3. The Respondent’s Position
3.1 The Respondent opposes the Application on grounds that it was filed more than two years after delivery of judgment without justification; that it is frivolous, vexatious, procedurally defective and an abuse of the court process; and that the Applicants, having been successful litigants, have no basis to appeal.
3.2 The Respondent further contends that the dispute is essentially an employment dispute falling within the jurisdiction of the Employment and Labour Relations Court, and that the Applicants are improperly seeking orders affecting third parties who were not parties to the suit.
4. Issues for Determination
4.1 Having considered the pleadings, affidavits and submissions on record, the Court finds that the following issues arise for determination:
(a) Whether this Court has jurisdiction to grant the orders sought; (b) Whether the Applicants have met the threshold for grant of stay limited to the use and reliance on the impugned judgment; (c) Whether leave to appeal out of time should be granted.
5. Jurisdiction
5.1 This Court is alive to the objection that the disciplinary proceedings complained of arise from an employment relationship and that labour disputes ordinarily fall within the jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act.
5.2 However, the Application before this Court does not seek a determination of employment rights, nor does it seek to set aside, vary, stay or interfere with any disciplinary decision already made by the employer. The employer is not a party to these proceedings and no coercive orders are sought against it.
5.3 The jurisdiction invoked is appellate and supervisory in nature, flowing from the High Court’s mandate to hear appeals from the Small Claims Court under the Small Claims Court Act and its inherent jurisdiction to preserve the integrity and utility of an intended appeal.
5.4 The narrow question before this Court is whether remarks contained in a subordinate court judgment, which remarks are challenged on appeal, may continue to be relied upon as definitive findings while the legality and propriety of those remarks remain unresolved on appeal.
5.5 To that extent, the Court is satisfied that it has jurisdiction to regulate the use and consequences of its own appellate process. Any effect on disciplinary proceedings is incidental and does not amount to an intrusion into the exclusive jurisdiction of the Employment and Labour Relations Court.
6. Whether the Applicants Have Met the Threshold for Stay
6.1 The purpose of a stay pending appeal is to preserve the subject matter so that the right of appeal is not rendered illusory. The guiding consideration is whether refusal to grant stay would render the intended appeal nugatory.
6.2 It is common ground that the Respondent’s claim before the Small Claims Court was dismissed. The judgment did not result in any adverse decree against the Applicants.
6.3 The remarks complained of were not part of the ratio decidendi of the judgment and were not translated into any operative finding. It is trite that obiter dicta or incidental observations do not carry binding force.
6.4 The Applicants have demonstrated, on a prima facie basis, that the impugned remarks are being treated as definitive findings notwithstanding that they were not founded on pleaded issues or tested evidence.
6.5 This Court is persuaded by the reasoning in Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR), where it was held that incidental remarks not essential to a court’s determination cannot constitute binding findings capable of grounding subsequent sanctions.
6.6 The Applicants face real and irreversible consequences if the impugned remarks continue to be relied upon as conclusive while under appellate challenge. Conversely, the Respondent stands to suffer no prejudice, the judgment having conferred no enforceable benefit upon him.
6.7 The Court is therefore satisfied that a limited stay is necessary to preserve the subject matter of the intended appeal. This stay shall not disturb or reverse any disciplinary decisions already taken, but shall operate prospectively to restrain further reliance on the impugned judgment as a definitive basis for adverse action pending appeal.
7. Whether Leave to Appeal Out of Time Should Be Granted
7.1 The principles governing extension of time are well settled and include consideration of the length of delay, the reason for the delay, the arguability of the intended appeal and the prejudice to the opposing party.
7.2 The Applicants were successful litigants before the Small Claims Court and no adverse decree was issued against them. There was therefore no immediate reason to lodge an appeal.
7.3 The Applicants have satisfactorily explained that the need to appeal only arose when the incidental remarks in the judgment were later relied upon to their detriment in disciplinary proceedings. Upon discovery of this development, the Applicants moved the Court without undue delay.
7.4 The intended appeal raises arguable questions, including whether the Small Claims Court acted within its jurisdiction in making remarks of a criminal nature absent pleadings and evidence.
7.5 The Respondent will suffer no prejudice if time is enlarged, while refusal to enlarge time would permanently shut out the Applicants from appellate recourse.
7.6 In the circumstances, the Court is satisfied that the delay is excusable and that a proper case has been made for enlargement of time.
8. Conclusion and Orders
8.1 For the foregoing reasons, the Notice of Motion dated 14th October 2025 is merited.
8.2 Accordingly, the Court makes the following orders:
(a) The Applicants are granted leave to file and serve their Memorandum of Appeal against the judgment delivered on 20th September 2023 in Mombasa SCC COMM No. E512 of 2023 out of time. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.
(b) Pending the hearing and determination of the intended appeal, there shall be a stay of the use, reliance upon, implementation or enforcement of the judgment delivered on 20th September 2023 in Mombasa SCC COMM No. E512 of 2023, and in particular the incidental remarks contained therein, as definitive findings capable of grounding adverse action.
(c) For avoidance of doubt, nothing in this Order shall be construed as setting aside, staying, reversing or interfering with any disciplinary decisions already made by the Applicants’ employer.
(d) Costs of the Application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17 TH DAY OF DECEMBER 2025.
WENDY KAGENDO
JUDGE
PRESENT:
FOR THE APPLICANT: MR KILONZO
THE RESPONDENT IN PERSON
BEBORA COURT ASSISTANT