David Mbugua v Keroche Breweries Ltd [2015] KEELRC 933 (KLR)
The bottom line
#A Kenyan employer lost its bid to pause payment of a wrongful termination award because it waited too long and failed to prove real loss.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as the threshold for stay of execution
The Respondent failed to show substantial loss; the Claimant held a legitimate judgment pronounced after hearing both sides
The Court applied the principle that substantial loss is the cornerstone of a stay application and must be demonstrated in the supporting affidavit, not merely asserted. The Respondent only stated that the decretal sum was large and that the Claimant might be unable to repay it, which the Court held was insufficient, applying Odunga J's dictum in the Wananchi Group case.
Assertion that the decree holder is a man of straw
The contention that the decree holder cannot repay the decretal sum is not, without more, a basis for stay
Relying on Emukule J's dictum in Cosmas Kipkoech Sigei v Madrugada Ltd, the Court held that a stay will not be granted on the ground that the decree holder is a pauper. The Respondent produced no proof of the Claimant's inability to refund.
Irregularity of execution before taxation of costs
The Claimant's execution before costs were ascertained by taxation was irregular; the sanction was that the Claimant bears the auctioneer's charges, not that the stay be granted
Section 94 of the Civil Procedure Act, applicable to the Court, provides that a decree should be executed forthwith but as to costs only after taxation. Order 22 rule 7 contemplates that costs be included in the application for execution. The Claimant executed before taxation, and for that irregularity was ordered to meet the auctioneer's charges.
Timeliness of the stay application
The application was not filed timeously, as the Respondent waited until auctioneers moved in before moving to court
The Claimant deposed that despite service of a Notice of Appeal on 3 March 2015, the Respondent only acted when its property was proclaimed on 22 April 2015. The Court accepted this supported the view that the Respondent had gone into slumber, undermining the stay application.
Legal principles established
#- An applicant for stay must demonstrate substantial loss clearly in the supporting affidavit; merely stating the decretal sum is large is insufficient
- A stay will not be granted on the ground that the decree holder is unable to refund the decretal sum
- Execution should not issue before taxation of costs where costs have been awarded to the succeeding party unless the Court gives leave
Court orders
#- 1.The motion dated 24 April 2015 is dismissed
- 2.Each party to bear their own costs
- 3.The Claimant to meet the auctioneer's charges
- Jurisdiction invoked
- Inherent jurisdiction to regulate execution of its decrees; section 94 of the Civil Procedure Act (applicable to the Court's execution procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mbugua v Keroche Breweries Ltd [2015] KEELRC 933 (KLR)", Case Analysis (2015). Cause No 59 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/933/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.