Background
1. In the application dated 29th July, 2025, the applicant prayed for orders that;
1. This Application be certified urgent, service thereof be dispensed with, and the Application be heard ex parte in the first instance.
2. Pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the execution of the judgment and decree of the Honourable J.B. Kalo (Chief Magistrate) dated and delivered on 21st May 2025 in Mombasa Chief Magistrate's Employment and Labour Relations Court Cause No. E711 of 2021-Peter Munene Ngure v. Primefuels (Kenya) Limited as amended on 22nd July 2025.
3. This Honourable Court be pleased to extend the time within which the Applicant is to file an appeal against the judgment and decree of the Honourable J.B. Kalo (Chief Magistrate) dated and delivered on 21st May 2025 in Mombasa Chief Magistrate's Employment and Labour Relations Court Cause No. E711 of 2021- Peter Munene Ngure v. Primefuels (Kenya)Limited as amended on 22nd July 2025.
4. Pending the hearing and determination of the intended appeal, this Honourable Court be pleased to stay the execution of the judgment and decree of the Honourable J.B. Kalo (Chief Magistrate) dated and delivered on 21st May 2025 in Mombasa Chief Magistrate's Employment and Labour Relations Court Cause No. E711 of 2021-Peter Munene Ngure v. Primefuels (Kenya) Limited as amended on 22nd July 2025.
5. This Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances of this case.
6. The costs of this application do abide the outcome of the intended appeal against the judgment and decree of the Honourable J.B. Kalo (Chief Magistrate) dated and delivered on 21st May 2025 in Mombasa Chief Magistrate's Employment and Labour Relations Court Cause No. E711 of 2021 - Peter Munene Ngure v. Primefuels (Kenya) Limited as amended on 22nd July 2025.
Applicant’s Application.
2. The follows a judgment delivered by Hon. J.B. Kalo (CM) on 21 May 2025 in favour of Peter Munene Ngure against Suhara Transport (K) Limited, formerly trading as Primefuels (Kenya) Limited. The trial court awarded the Respondent Kshs. 190,204.45 as unpaid leave and KShs. 78,031.80 as an unpaid house allowance together with costs.
3. Following the judgment, the Applicant filed an application on 3 June 2025 seeking to amend the judgment and decree so that the correct company name could appear in the proceedings. The application was allowed by consent on 22 July 2025, with the court directing that the Applicant’s name be amended to read Suhara Transport (K) Limited (previously trading as Primefuels (Kenya) Limited). The Applicant states that the amendment application was not heard and determined within the statutory period for filing an appeal, and that, once the amendment was allowed, it became desirous of exercising its right of appeal.
4. The Applicant now seeks an extension of time to file an out-of-time appeal and a stay of execution pending the intended appeal. It contends that the intended appeal is arguable and has a high probability of success.
5. The Applicant submits that the trial court failed to properly consider the legal effect of a Final Settlement Letter or Discharge Voucher dated 1 December 2020, which the Respondent allegedly signed voluntarily after acknowledging receipt of Kshs. 80,130 as final dues. According to the Applicant, the Respondent neither denied signing the document nor pleaded fraud, duress, mistake, or misrepresentation to invalidate it. The Applicant therefore maintains that, by signing the Discharge Voucher, the Respondent confirmed that he had no further claims arising from the employment relationship or its termination.
6. The Applicant further argues that the trial court erred in awarding unpaid leave despite evidence that leave pay had already been included in the Respondent’s final dues, and in awarding house allowance despite the employment contract allegedly providing for a consolidated salary inclusive of house allowance. It also contends that the trial court awarded sums not pleaded, failed to explain how some of the awarded sums were arrived at, addressed issues not pleaded, and failed to adequately consider the Applicant’s defence, evidence, and submissions.
7. The Applicant further asserts that execution of the judgment is imminent because the Respondent intends to proceed with taxation of costs and execution. It fears the attachment and sale of its movable property and contends that the intended appeal would be rendered nugatory if execution proceeds before the appeal is heard and determined. It asserts that the Respondent has no known source of income and may not be able to refund the decretal sum if the appeal succeeds. It therefore seeks a stay of execution and states that it is willing to provide security as the court may direct.
Respondent’s Response
8. The Respondent opposes the application on the grounds of opposition filed herein. He contends that the application is belated, ill-conceived, misinformed, and tainted with mala fides. The Respondent argues that the orders sought are untenable in the circumstances of the case and that the application is vexatious and does not meet the threshold for the grant of stay of execution or extension of time.
9. The Respondent further contends that the application is bad in law and an abuse of the court process, particularly because it seeks a stay of execution in the absence of a valid appeal and seeks to validate an appeal intended to be filed out of time.
10. According to the Respondent, the application is merely an afterthought intended to delay the Respondent’s access to and enjoyment of the fruits of the judgment. The Respondent additionally alleges that the application is tainted with outright falsehoods and constitutes a waste of the court’s time and resources.
Analysis and determination
11. I have carefully considered the application, the grounds upon which it is premised, the supporting affidavit, the ground of opposition, and the submissions filed herein, and the sole issue that emerges for determination is whether the Applicant’s application is merited.
12. Section 79G of the Civil Procedure Act confers discretion on the court to admit an appeal out of time where sufficient cause is shown.
13. The principles governing the extension of time were set out in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where it was held that “This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
14. In Simon v Oira [2025] KEHC 7211 (KLR), the court held that “It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR, where it was emphasised that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.”
15. In the present matter, judgment was delivered on 21 May 2025 and the statutory period for filing an appeal lapsed on 21 June 2025. The Applicant explains that shortly after the delivery of judgment, it filed an application on 3 June 2025 seeking to amend the judgment and decree to reflect the correct company name, Suhara Transport (K) Limited, previously trading as Primefuels (Kenya) Limited. The amendment application was eventually allowed by consent on 22 July 2025.
16. In my view, the reason for the delay has been sufficiently explained and is plausible. The Applicant has explained that the intended appeal could not reasonably be filed before the issue concerning the proper description of the Respondent in the judgment and decree was regularised. Further, the Applicant’s advocate has taken responsibility for the delay and urged that counsel’s inadvertent mistake should not be visited upon the client.
17. The draft memorandum of appeal also raises arguable issues deserving consideration on appeal.
18. The Respondent argues that Suhara Transport (K) Limited was a stranger to the proceedings. However, he fails to contest the existence of the consent that the Applicant asserts was recorded following the judgment and his post-judgment application.
19. The Respondent will no doubt suffer some delay in enjoying the fruits of the judgment. However, that prejudice can adequately be mitigated by an appropriate order for security and costs. On the other hand, denying the Applicant an opportunity to ventilate the intended appeal where a plausible explanation for the delay has been offered would occasion greater prejudice. Sufficient cause has been shown to warrant the extension of time to lodge the intended appeal.
20. The applicable principles for a stay of execution pending appeal are set out in Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate that, if the order of stay is not granted, they would suffer substantial loss; that the application was made without unreasonable delay; and that they are willing to provide security for the due performance of the decree.
21. The Applicant states that execution is imminent and fears the attachment and sale of its movable property. It further contends that the Respondent has no known source of income and may be unable to refund the decretal sum should the intended appeal succeed.
22. The application was filed on 29 July 2025, shortly after the amendment application was determined on 22 July 2025. In these circumstances, the application was filed without unreasonable delay. Further, the Respondent has not challenged in any way the Applicant’s assertion that he is not a person of means and would be unable to refund the sum of the decree if, at the end of the day, he is called upon to do so. The Applicant has expressed willingness to furnish security as may be directed by the court.
23. Accordingly, the Applicant has satisfied the conditions for the grant of a stay of execution pending appeal.
24. By reason of the premises, the Applicant’s application herein is allowed. The;
a) Applicant is granted leave to file an appeal against the judgment in the above- mentioned lower court suit. The appeal shall be filed within 15 days of today.
b) Pending the hearing and determination of the intended appeal, there shall be stay of execution of the decree in the said matter, MCELRC E711 of 2021, subject to the Applicant depositing a sum of KShs. 300,000, in Court, within 21 days of today. In default, execution to issue.
Read, Signed, and Delivered this 28th Day of May 2026.
Ocharo Kebira
Judge.