Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNotice of Motion dated 20th January 2016 (ELRC, Nairobi)· [2016] KEELRC 53 (KLR)

James Kipchirchir Sambu v Patriotic Guards Limited [2016] KEELRC 53 (KLR)

Employment and Labour Relations Court
13 October 2016
1,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 13th October 2016, on the respondent Patriotic Guards Limited's Notice of Motion dated 20th January 2016 seeking stay of execution of the court's judgment dated 3rd November 2015 and ruling of 21st December 2015 pending an intended appeal, Civil Appeal No.20 of 2016, already filed in the Court of Appeal. The respondent argued the appeal was arguable, that the suit had been decided ex parte after non-attendance caused by an advocate's mistake, and that the claimant had committed a criminal offence justifying summary dismissal under section 44(4)(f) and (g) of the Employment Act. The claimant opposed, relying on Order 42 Rule 6(2) of the Civil Procedure Rules and contending that no substantial loss or risk of the appeal being rendered nugatory had been shown, and that a successful litigant is entitled to the fruits of judgment. The court applied Kenya Shell v Kibiru and Machira v East African Standard, holding that substantial loss is the cornerstone of the stay jurisdiction and that the burden lay on the applicant, which the respondent had failed to discharge. Nonetheless, exercising judicial discretion and noting the pending appeal, the court allowed the application on terms: deposit of the entire decretal sum in a joint interest-earning account of both advocates within 14 days, applicable pending determination of the appeal, lapsing automatically if the respondent failed to move the Court within 60 days, with costs of the application to the claimant.

Key legal issues

#
01

Whether the respondent for stay of execution satisfied the requirement of substantial loss

Holding

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

Reasoning

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.

p. 2
02

Whether stay should nonetheless issue given the pending appeal

Holding

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

Reasoning

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.

p. 3

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. 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. 2.The deposit orders to apply pending the hearing and determination of Civil Appeal No.20 of 2016 before the Court of Appeal
  3. 3.Where the Respondent fails to move the Court within 60 days, the orders shall automatically lapse
  4. 4.Costs of the application to the claimant

Authorities

#

Legislation

  • Employment Actsection 44(4)(f) and (g)
  • Employment and Labour Relations Court Actsection 17
  • Civil Procedure Rules 2010Order 42 Rule 6(2)
  • Civil Procedure Rulesorder XLI rule 4 (as cited in Kenya Shell v Kibiru)

Cases cited (6)

  • Richard Nicharpi Leiygu versus IEBC & Others
    Civil Appeal No.18 of 2013
  • James Moyenga Nyakweba 7 Others versus Jairo Atenya Asitiba
    HCCC 196 of 2012
  • John Peter Kiria & Another versus Pauline Kagwiria
    Civil Appeal No.114 of 2009 (Meru)
  • Kenya Shell Limited versus Kibiru
    [1986] KLR
  • Machira t/a Machira & Co. Advocates versus East African Standard
    HCCC No.162 of 1996
  • Socfinac Co. Ltd versus Nelphat Kimotho Muturi
    Civil Appeal No.542 of 2012
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.