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ELRCDismissedNot stated in judgment· [2013] KEELRC 615 (KLR)
Richard Nyaega Ondieki & 4 others v Wakenya Pamoja Savings and Credit Society Limited [2013] KEELRC 615 (KLR)
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#What this practically means
#Executive summary
#This was an interlocutory Notice of Motion dated 29 April 2013 brought by the respondents (applicants before the court) seeking a stay of execution of a decree issued on 16 April 2013, pending an intended appeal against that decree. The application was mounted under Order 42 Rules 6(1), (2), 8 and 4, Order 57 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010, supported by an affidavit of Nelson Gichaba Simba. The applicants asserted they had lodged a notice of appeal, that the appeal had a high probability of success, and that enforcement of the decree would occasion them irreparable damage. The claimant respondents, through an affidavit of Richard Nyaega Ondieki, opposed the application on the grounds that the decree had been fully obeyed and implemented - the claimants had already been reinstated - that nothing remained to be stayed, that no substantial loss had been demonstrated, and that the provisions invoked were inapplicable, rendering the application fatally defective. Framing the sole issue as whether the application had merit, Hellen S. Wasilwa J held that under Order 42 rule 6(2) it is imperative for an applicant to demonstrate the substantial loss that would result if stay is not granted. The applicants neither addressed the court on nor demonstrated such loss. Moreover, since the claimants had already been reinstated and resumed duty, granting a stay would result in their being sacked, occasioning grave injustice. The applicants also offered no compensating incentive to the claimants. The court therefore dismissed the application and refused the stay pending appeal.
Key legal issues
#01
Whether the applicants satisfied the conditions for stay of execution under Order 42 rule 6(2)
Holding
Application dismissed; substantial loss not demonstrated and grant of stay would occasion grave injustice to claimants already reinstated
Reasoning
Order 42 rule 6(2) requires the applicant to show substantial loss and that the application was made without unreasonable delay. The applicants did not address the court on substantial loss nor demonstrate it. Further, the applicants had already reinstated the claimants, so a stay would result in the claimants being sacked, occasioning grave injustice. The applicants also offered no compensating incentive to the claimants.
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Legal principles established
#- An applicant for stay of execution must demonstrate the substantial loss that will result if the order is not made
Court orders
#- 1.Application for stay of execution of the decree of 16.4.2013 dismissed
- Jurisdiction invoked
- Order 42 Rules 6(1), (2), 8(4) and Order 51 Rule 1 (Order 57 Rule 1) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Nyaega Ondieki & 4 others v Wakenya Pamoja Savings and Credit Society Limited [2013] KEELRC 615 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/615/eng@2013-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.