Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 851 (KLR)

Banking Insurance & Finance Union (K) v Agricultural Finance Corporation [2015] KEELRC 851 (KLR)

Employment and Labour Relations Court
10 June 2015
MMM. Mbaru
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that staying a money judgment requires proof of real loss, so it ordered partial payment while the appeal proceeds.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 5th March 2015 by the Agricultural Finance Corporation, the Respondent in an employment cause in which the court had on 24th February 2015 found the grievant unfairly terminated and awarded compensation of Kshs.428,221.80, salaries from 8th February 2011 to retirement at Kshs.5,031,606.15, notice pay, pension dues under the Collective Agreement, and costs. The Respondent sought stay of execution of the decree pending an appeal it had lodged at the Court of Appeal, contending the judgment amounted to multiple awards and that the appeal would be rendered nugatory without stay. The claimant, Banking Insurance Finance Union (K), opposed the application, arguing no appeal existed under Rules 82 and 83 of the Court of Appeal Rules, 2010, that no substantial loss was shown on a money decree, and that the application was defective for failing to attach the judgment. The court restated the three conditions for stay: substantial loss, absence of unreasonable delay, and security for due performance of the decree. Applying Kenya Shell Ltd v Benjamin Karuga, Aviation & Allied Workers Union v Kenya Airways and Silverstein v Chesoni, it held substantial loss is the cornerstone of a stay application and is a qualitative concept denoting loss of real worth. Finding the Respondent moved without delay but had failed to demonstrate any substantial loss, the court granted a conditional stay: the Respondent to release 25% of the judgment amount to the claimant, stay to lapse automatically if no appeal was filed within 30 days, with each party bearing their own costs. The application was thus partially allowed.

Key legal issues

#
01

Whether substantial loss was demonstrated to justify stay of execution

Holding

The Respondent relied only on grounds of appeal and did not demonstrate any substantial loss; nevertheless a conditional stay was granted upon release of 25% of the decretal sum

Reasoning

The court restated the three conditions for stay: substantial loss, absence of unreasonable delay, and security for due performance. Judgement was delivered on 24th February 2015 and the application filed on 5th March 2015, so there was no delay. However, the Respondent addressed only arguable grounds of appeal and said nothing about the loss it would suffer if the money decree were executed, failing to discharge its duty on the cornerstone requirement of substantial loss. The court therefore granted a conditional rather than unconditional stay.

p. 2
02

Whether the application was made without unreasonable delay

Holding

The application was made expeditiously and without delay

Reasoning

Judgment was delivered on 24th February 2015 and the application filed on 5th March 2015, a matter of days. The Respondent attached a draft memorandum of appeal, showing it moved expeditiously to secure stay of the orders and judgment of the court. Delay was therefore not a bar to the relief, though delay alone could not justify the orders without proof of substantial loss and compliance with any security directed.

p. 2

Legal principles established

#
  • Substantial loss is the cornerstone of an application for stay of execution; the applicant must demonstrate what substantial loss will be suffered if stay is not granted.
  • Substantial loss is a qualitative concept referring to loss of real worth or value, as distinguished from a nominal loss.
  • Execution is a lawful process and the applicant must show execution will irreparably affect the essential core of the applicant as successful party.

Court orders

#
  1. 1.The Respondent shall release 25% of the total judgment amount to the claimant
  2. 2.Stay of execution granted, lapsing automatically if an appeal to the Court of Appeal is not filed within 30 days
  3. 3.Each party shall pay their own costs

Authorities

#

Legislation

  • Court of Appeal Rules, 2010Rules 82 and 83

Cases cited (5)

  • Kenya union of Domestic Hotels Educational institutions Hospitals 7 Allied Workers (KUDHEIHA) versus Nairobi Club
    [2012] eKLR
  • Aviation & Allied Workers Union versus Kenya Airways limited & 3 others
    [2013] eKLR
  • Kenya Shell Ltd versus Benjamin Karuga
    [1982-88] 1 KLR 1018
  • Aviation & Allied Workers Union versus Kenya Airways Limited, Cause No 1616 of 2012
  • Silverstein versus Chesoni
    [2002] 1 KLR 867
Jurisdiction invoked
Discretionary power of the Employment and Labour Relations Court to stay execution of its own decree pending appeal (Court of Appeal Rules, 2010, Rules 82 and 83 referenced regarding the appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banking Insurance & Finance Union (K) v Agricultural Finance Corporation [2015] KEELRC 851 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/851/eng@2015-06-10

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