James Kipchirchir Sambu v Patriotic Guards Limited [2016] KEELRC 53 (KLR)
The bottom line
#A Kenyan employer seeking to pause a judgment had to prove it would suffer real loss; failing that, it could only get a stay by depositing the full award.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent for stay of execution satisfied the requirement of substantial loss
The respondent failed to demonstrate substantial loss; it only complained of being aggrieved by the ex parte judgment without showing what loss execution would occasion
Relying on Kenya Shell Limited v Kibiru, the court distinguished substantial loss from irreparable loss and reiterated that substantial loss is the cornerstone for granting a stay. The respondent's submissions addressed only its grievance with the judgment and ruling, not the impact of execution upon it, so the threshold condition was not met.
Whether stay should nonetheless issue given the pending appeal
In the interests of justice and because Civil Appeal No.20 of 2016 was already lodged, the court allowed the application conditionally, ordering deposit of the decretal sum
Although the substantial loss ground was not satisfied, the court held its discretion had to be exercised judicially. Since an appeal was already filed, a deposit of security would suffice pending its hearing, and the orders were to lapse if the respondent failed to move the Court of Appeal within 60 days.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution pending appeal
- The burden lies on an applicant for stay to demonstrate the loss it will suffer if stay is not granted
- A successful judgment holder should be allowed to enjoy the fruits of their judgment
- Without proof of substantial loss, consideration of delay and security would be academic, though the discretion must be exercised judicially in the interests of justice
Court orders
#- 1.Deposit of the entire decretal sum in a joint interest-earning account of both Advocates for the parties (Namada & Co. Advocates for the claimant and Wachakana & Co. Advocates for the respondent) within the next 14 days
- 2.The deposit orders to apply pending the hearing and determination of Civil Appeal No.20 of 2016 before the Court of Appeal
- 3.Where the Respondent fails to move the Court within 60 days, the orders shall automatically lapse
- 4.Costs of the application to the claimant
- Jurisdiction invoked
- Section 17 of the Employment and Labour Relations Court Act; order 42 rule 6(2) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kipchirchir Sambu v Patriotic Guards Limited [2016] KEELRC 53 (KLR)", Case Analysis (2016). Notice of Motion dated 20th January 2016 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/53/eng@2016-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.