1.This Ruling is in respect of the Applicant’s Notice of motion dated 14th March, 2023, filed under certificate of urgency pursuant to Sections 3A & 3B of the Civil Procedure Act, Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, order 22 Rule 22, Article 159(2)(d) of the Constitution, 2010 and all other enabling provisions of the law, seeking for the following Orders; -a.Spent.b.That pending the hearing and determination of this Application, the Honourable Court do issue orders staying of execution of the Judgement and Resultant Decree in Kericho CM ELRC No. E007 Collins Kiptoo Kirui V Kingdom Bank Limited, pending the hearing and determination of the Appeal.c.That pending the hearing and determination of the Appeal, the Honourable Court do issue further stay of execution of the Judgement Kericho CM ELRC No. E007 Collins Kiptoo Kirui V Kingdom Bank Limited, pending hearing and determination of the Appeal.d.That this Honourable Court be pleased to grant the Applicant leave to lodge an Appeal out of time against the Judgement and resultant Decree of the Honourable C. Olubustsa(CM) delivered on 7th February, 2023.
2.The Application is based on the grounds on the face of the Application and the affidavit of Jackson Kimathi, the Respondent’s legal officer, deposed upon on the 14th March, 2023. The grounds of the Application are as follows;i.That on 7th February, 2023, the Honourable C. Olubustsa delivered a judgment in Kericho CM ELRC No. E007 Collins Kiptoo Kirui V Kingdom Bank Limited in favour of the claimant for award of Kshs 756,000 for unfair termination, together with interest from the date of filling suit to payment in full. The claimant was also awarded costs of the suit and the counterclaim.ii.That the Applicant herein is aggrieved by the entire judgement and intends to Appeal it.iii.It is averred that the Respondent is likely to execute the decree herein unless the stay orders are granted by this Court. Further that if stay of execution is not granted the Appeal will be rendered nugatory.iv.He stated that delay in filling the memorandum of appeal was occasioned by delay in receiving certified copy of the judgement which was supplied on the 22nd February, 2023 and received on 28th February, 2023.v.It was stated that if the decretal sum is paid to the claimant, he will not be in a position to refund in the event the appeal succeeds, this is because the claimant has loan arrears with the Applicant herein which was raised in the trial Court but the Court declined to make any orders on the same.vi.It is averred that the trial Court failed to consider that the claimant has breached his employment contract which warranted his dismissal under Section 44(c) of the Employment Act and therefore is not deserving of the reliefs granted.vii.The Applicant maintained that it has an arguable appeal with high chances of success and in any case that the Respondent herein will not be prejudiced if stay Orders are granted.viii.He stated that the Applicant is willing to deposit a bank Guarantee as security for due performance.ix.He also stated that the Application herein has been filed timeously and urged this Court to enlarge time within which the Applicant can filed its Appeal.
3.The Application is opposed by the Respondent who filed grounds of opposition on 4th April, 2023 which grounds are as follows; -a.That the Miscellaneous application is factually and inevitably defective as it is provided on the wrong position of the law.b.That there cannot be an order for stay of execution pending appeal as against a judgement as pleaded in the instant application as a matter of law.c.That there being no decree executed, there is no danger of execution as alluded to by the amended Application.d.That during the delivery of judgment, leave to file for stay of execution was granted in the lower Court proceedings and the Intended Appellant deliberately opted not to file the same. this being at their own instance.e.That the Intended Appellant's counsel being present during the delivery of judgment on 7th February 2023: have not sufficiently explained the reason for the undue delay.f.That no evidence of distress has been proved in the Intended Appellant to warrant the hearing of this application.g.That equity aids the vigilant not the indolent.h.That all litigations must come to an end.i.Any other ground to be adduced at the hearing thereof
4.The Application proceeded by written submission with the Applicant filling on the 16th May, 2023 and the Respondent on the 26th May, 2023.
5.The applicant submitted on one issue, whether the Applicant has raised sufficient grounds to persuade the Court to grant the orders sought. It was submitted that section 79G of the Civil Procedure Act empowers this Court to enlarge time within which an Appeal can be lodged. It was argued that the decision to enlarge time is a discretion of the Court and the factors to consider are as listed in the case of Thuita Mwangio V Kenya Airways Limited  eklr where the Court held that;-
6.Similarly, that in this case, judgement was delivered on the 7th February, 2023 while the present application was filed on 22nd March, 2023, 21 days after the lapse of 30 days within which an appeal can be filed. He argued that the delay is occasioned by failure to get certified copy of the judgement which was ready on 22nd February, 2023 and supplied to the Applicant on 28th February, 2023. He maintained that the delay in filling this Applicant is not inordinate in the circumstances.
7.On the prayer for stay of execution, it was submitted that the purpose for stay of execution is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the right of appeal are safeguarded and the appeal is not rendered nugatory as provided for under Order 42 Rule 6 of the Civil Procedure Rules. To support this they relied on the case of Stanley Kiplangat Rono and another V William Kiprotich Cherus eklr where the Court relied on RWW Vs EKW[ 2019] eklr that held that;-
8.On substantial loss, the Applicant submitted that the amount in issue is a colossal sum that might not be recovered in the events the appeal succeeds, therefore that a stay of execution is necessary. In this they cited the case of Century Oil Trading Company Limited V Kenya Shell Limited Nairobi  eklr.
9.On whether the application has been made in a timeous manner, the Applicant submitted that it filed this Application on 22nd March, 2023, when judgement was delivered on 7th February, 2023 therefore that it filed it without any unreasonable delay. In this they relied on the case of Stanley Kiplangat Rono and another V William Kiprotich Cherus[supra] where Judge Odeny held that; -
10.On security for due performance, the applicant submitted that they are willing to provide a Bank Guarantee from a reputable Bank in order to secure the audience of the Court in the intended appeal. In this they relied on the case of Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)  eKLR, where the Court cited the decision in Egal Mohamed Osman vs. Inspector General of Police & 3 Others  eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another v Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, the Ugandan Supreme Court stated as follows regarding the rules of natural justice:
11.On chances of the Appeal succeeding, the Applicant submitted that the damages awarded to the Respondent herein were excessive and flew on the face of the binding authorities. He argued that that issue is arguable and the Court should grant it chance to ventilate on it.
12.The Applicant in conclusion, urged this Court to allow its Application as prayed as they have sufficiently justified the prayers sought therein.
13.The Respondent also submitted on one issue whether the Court should grant stay of execution pending Appeal. It was submitted that as per Section 13 of the Employment and Labour Relations Act and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules, the applicable law in stay of execution is Order 42 Rule (6) 2 of the Civil Procedure Rules. Therefore, that since the Applicant has failed to cite these Court’s rules and the Act, the Court has not been moved properly and therefore its jurisdiction cannot be invoked and the Court should down its tools as stated in the celebrated case of Owners of Motor vessel ‘Lilian S’ V Caltex Oil (Kenya) Limited.
14.On whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal as provided for under Order 42 Rule 6 of the Civil Procedure Rules. The Respondent submitted with regard to substantial loss that there is no cogent evidence tabled before this court to suggest any loss that will be visited on the Applicant. In fact, that the decree has not yet been extracted, thus there is no danger of execution. On that basis, it was argued that the prayer for stay should collapse on that ground.
15.To support this position the Respondent relied on the case of Wisely Patrick Simasi & 8 others V Lmanthe Hygiene Food  eklr where the Court held that; -
16.It was submitted further that general statement of loss is not sufficient to shift the burden of proof to the claimant, even where the process of execution has commenced. In this they relied on the case of Peter Mutuku Nthuku V Perimeter protection Limited  eklr. Additionally, that since the Bill of costs is yet to be heard or decree extracted the Application herein has been filed prematurely. In this they relied on the case of Thomas N Nguti &196 others V Kenya Airways Corporation  eklr where the Court stated that; -
17.On security, the Respondent submitted that in the event this Court allows the Application, then the decretal sum be held in a joint interest earning account in the name of both counsels until the Appeal is heard and determined. It was argued that the alleged reputable financial institution has not be disclosed. Also that a bank guarantee does not accrue any interest and the Applicant may drag their feet in causing the Appeal to be heard.
18.On whether there is any arguable appeal, the Respondent submitted that argueability of the Appeal is not one of the consideration of this Court, however that when determining the probability of success of the Appeal, the Court shall be guided by the draft Memorandum of Appeal which has not be annexed to this Application, neither has the request for typed proceedings or notice of Appeal. It was argued that in absence of evidence of any effort undertaken by the Applicant to lodge the Appeal the Application is not merited. In this they relied on the case of Wisely Patrick Simasi & 8 others V Lmanthe Hygiene Food [Supra] where it was stated that;-
19.The Respondent submitted that the trial Court considered the Applicant’s counterclaim and pronounced itself on the same that the Applicant herein did not prove the claim of outstanding loan. It was submitted further that Respondent is not a man of straws as alleged by the Respondent.
20.On delay in filling the Application, the Respondent submitted that no reason has been shown why the application was not filed in a timeous manner.
21.In conclusion, the Respondent submitted that the application herein lacks merit because it has not meet the conditions under Order 42 Rule 6 of the Civil Procedure Rules. He urged the Court to dismiss the Application with costs to the Respondent.
22.I have examined all the averments and submissions of the parties herein. The applicant seeks stay orders pending filing of an appeal. They also seek orders to allow them file the appeal out of time.
23.The applicants have indicated that the reason for failing to file the appeal within time was because they received a certified copy of the Judgment on 28th February, 2023 and filed this application on 22nd March, 2023.
24.The applicants have also offered to provide security to preserve the rights of the respondents.
25.In view of the fact that the applicants should not be denied their right of appeal and given that they are willing to give security to the Judgment; I will allow the application and grant the applicants leave to file the appeal out of time and in any case within 7 days from this date herein.
26.The applicants are also expected to deposit the entire decretal sum in an interest earning account held in joint names of counsels on record within 30 days.
27.In default the orders herein are vacated and execution may proceed.
28.Costs to abide the outcome of the Appeal.