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ELRCDismissedNot stated in the judgment· [2015] KEELRC 775 (KLR)

Kwekwe Mwakela v Krystalline Salt Ltd [2015] KEELRC 775 (KLR)

Employment and Labour Relations Court of Kenya (implied from references to employment benefits and 'Claimant/Respondent' parties)
10 July 2015
OMO. N. Makau
714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to freeze a court award because it offered only fears, not evidence, that employees could not repay if an appeal succeeded.

What this practically means

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Executive summary

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On 19/12/2014 the court entered judgment awarding employment benefits to the Claimant and other Claimants in consolidated suits, totalling Kshs.2,219,191.77 plus costs and interest. The Respondent, Hasmita Patel, filed a Notice of Appeal and brought a Notice of Motion dated 9/2/2015 seeking stay of execution of that judgment pending the intended appeal, supported by her affidavit of even date. She argued the appeal was arguable, would be rendered nugatory if stay was denied, offered security, and that the application was made without delay. The Claimants opposed through grounds of opposition, citing inordinate delay, though they were agreeable to the decretal sum being deposited in a joint interest-earning account of counsel. The application was disposed of by written submissions. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court found the application was brought without inordinate delay and that the applicant was willing to furnish security, but held that the applicant failed to prove substantial loss: her affidavit expressed only apprehension that the over 60 Claimants, whose individual awards ranged between Kshs.20,000 and Kshs.34,400, would be unable to refund the decretal sums if the appeal succeeded. That burden not being discharged, the motion was dismissed with costs on 10th July 2015.

Key legal issues

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01

Whether the applicant demonstrated substantial loss sufficient to warrant stay of execution pending appeal

Holding

The applicant failed to prove substantial loss; her apprehension that the over 60 Claimants could not refund the small individual awards was not substantiated by evidence, so the application failed the Order 42 rule 6(2) threshold.

Reasoning

The court accepted that the application was brought without inordinate delay and that the applicant was willing to provide security by depositing the decretal sum. However, the only hurdle was substantial loss. The affidavit merely expressed apprehension that the decretal amount would not be recoverable if the appeal succeeded. Given that the individual awards ranged between Kshs.20,000 and Kshs.34,400 across over 60 Claimants, the court found no evidentiary proof of inability to refund, rendering the motion a sham.

p. 2

Legal principles established

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  • An applicant for stay of execution must prove substantial loss by evidence on affidavit; mere apprehension that the decretal amount will not be refunded is insufficient.
  • The three threshold conditions for stay pending appeal under Order 42 rule 6(2) are absence of inordinate delay, demonstration of substantial loss, and willingness to furnish security.

Court orders

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  1. 1.The Notice of Motion dated 9/2/2015 is dismissed
  2. 2.Costs of the application awarded to the Claimants

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kwekwe Mwakela v Krystalline Salt Ltd [2015] KEELRC 775 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/775/eng@2015-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.