Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR)
The bottom line
#A Kenyan employment court refused to pause a judgment because the employer never showed exactly what loss paying the award would cause.
What this practically means
#Executive summary
#Key legal issues
#Relevance of arguability of the intended appeal to stay of execution pending appeal
Arguability is not a criterion for stay under Order 42 Rule 6; authorities on Rule 5(2)(b) of the Court of Appeal Rules are inapposite
The Respondent relied on Court of Appeal authorities concerning stay under Rule 5(2)(b) of the Court of Appeal Rules, where arguability is a threshold requirement. The court distinguished that jurisdiction from stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, where the applicable principles are substantial loss, delay and security, and declined to consider arguability.
Whether the Respondent demonstrated substantial loss
No substantial loss was demonstrated
Endorsing Odunga J in Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd, the court held that substantial loss must come out clearly in the supporting affidavit and the applicant must show the damages it would suffer. The supporting affidavit sworn by Jacqueline Chele nowhere demonstrated the loss the Respondent would be occasioned if stay was denied.
Whether the decree holder being unable to refund justifies stay
Inability to refund is not, without more, a good reason for stay
The Respondent contended it would be unable to recover the decretal sum if paid. The court, endorsing Emukule J in Cosmas Kipkoech Sigei v Madrugada Ltd, held that a stay will not be made on the ground that the decree holder is a pauper. The Claimant had also stated she had assets and could refund the decretal sum.
Delay and security
The motion was brought without undue delay and security had already been ordered
The motion was lodged within about a month of the judgment, which the court found was not undue time. The Respondent had offered and the court had ordered at the ex parte stage that the decretal sum be deposited in court, so nothing substantial turned on the security principle, though no receipt of payment was on file.
Legal principles established
#- Whether a party has an arguable appeal is not a factor in an application for stay of execution pending appeal in the High Court or the ELRC
- Substantial loss must be demonstrated clearly in the supporting affidavit; it is not sufficient to merely state that the decretal sum is a lot of money
- A stay will not be granted merely because the decree holder may be unable to refund the decretal sum if the appeal succeeds
Court orders
#- 1.The Court declines to grant the orders sought in the motion dated 31 March 2016
- 2.The motion is dismissed with costs to the Claimant
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR)", Case Analysis (2016). Motion dated 31 March 2016 (arising from judgment delivered 8 March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/616/eng@2016-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.