Lumumba v Keitt Exporters Limited (Cause E201 of 2022) [2025] KEELRC 3762 (KLR)

concluded that the redundancy was unlawful and awarded the Claimant six months salary (Kshs. 900,000) as compensation, one month salary (Kshs. 150,000) in lieu of notice, two days salary (Kshs. 10,000) for February 2022 and severance pay for one complete year served equaling Kshs. 1,135,000/4. On 15th August 2025, the Applicant filed Notice of Appeal dated 11th August 2015 and thereafter applied for typed proceedings. The instant Motion seeks stay of execution pending determination of the intended appeal. It is the Respondents case that the intended appeal has merits and unless stay of execution is granted the Applicant will sufier irreparable harm. It also Respondent’s case that the instant application was made without delay. Finally the Respondent is ready to abide with any reasonable conditions for stay that the Court may direct. 5. The Claimant urged the Court to decline the application for stay because there is no valid Notice of Appeal on record as the one dated 11th august 2025 was filed in Court on 15th August 2025 outside the limitation period of 14 days after the impugned decision. Further, she averred that applicant a well established exporter with suficient means to satisfy the decree without sufiering any irreparable harm. She further averred that her employment was unfairly terminated and she now lacks stable income. 6. The Claimant faulted the Applicant for failure to ofier satisfactory security and urged the Court to order that the whole decretal sum be deposited in an interest earning account in join names of the Advocates for the two parties as a condition for the stay order. 7. I have considered the Motion, Afidavits and submissions and the main issue for determination is whether the Applicant has met the legal threshold for granting stay of execution pending appeal. Analysis 8. 9. The power to grant or deny an order of stay pending appeal is discretion and it is donated by Order 42 Rule 6 of the Civil Procedure Rules. The said Rule provides that:“ (1) (1) No appeal or second appeal shall operate as a stay or proceedings under a decree or order appealed from except in so far as the court appealed from may order…” (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.” The conditions precedent to granting stay of execution pending appeal fiowing from the above provision are:a. Existence of an appeal. b. Application must be made without undue delay. c. Substantial loss to the applicants if stay is denied. d. Ofier of security for the due performance of the decree. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3762/eng@2025-12-15 2

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10. The existence of an appeal is the life line of any application for stay of execution of any impugned decision, without which the application crumbles. It follows that an applicant for stay of execution pending appeal must prove to the Court that a competent appeal or a notice of appeal exists before proceeding to prove the other three conditions. 11. In the instant case, the Claimant contended that the Notice of Appeal dated 11th August 2025 was filed on 15th August 2025 outside the limitation period of Fourteen days prescribed by Rule 77 (2) of the Court of Appeal Rules. The Applicant did not deny that it filed the Notice of Appeal on 15th August 2025, outside the Fourteen days limitation period fixed by the Court of Appeal Rules. 12. Rule 77 (1) and (2) provides that:“ (1) (1) A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court. (2) Each notice under sub rule (1) shall be subject to Rule 84 and 97, be lodged within fourteen days after the date of the decision against the decision for which appeal is lodged.” 13. The wording of the above sub rules is in couched in mandatory terms and as such the party intending to appeal in the Court of Appeal must comply or perish. In this case, the trial Court delivered the impugned judgment on 31st July 2025 and the Applicant filed the Notice of Appeal on 15th August 2025. 14. The Fourteen days period within which to file the Notice of Appeal lapsed on 14th August 2025 and therefore the Notice of Appeal filed on 15th August 2025 was outside the statutory period and was therefore fatally defective and incompetent by dint of Rule 77 (2) of the Court of Appeal Rules. 15. As earlier stated, without existence of a competent appeal or Notice of Appeal defeats the whole application for stay and therefore I see no need for considering the rests of the conditions for granting stay pending appeal since there is no appeal pending. Accordingly, I dismiss the Notice of Motion dated 11th September 2025 with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 15TH DAY OF DECEMBER, 2025. ONESMUS MAKAU JUDGE Appearance: Okumu for Otieno for the Respondent/Applicant Okeyo for the Claimant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3762/eng@2025-12-15 3

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