Mary Mumbi Kariuki v Director Pamoja Women Development Programme [2016] KEELRC 1570 (KLR)
The bottom line
#A Kenyan employment court refused to pause enforcement of a Kshs 100,925 award because the employer delayed three months and showed no real loss.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Respondent failed to demonstrate substantial loss; bare assertions that the Claimant could not repay the decretal sum, without tangible evidence, do not suffice.
Relying on Cosmas Kipkoech Sigei v Madrugada Ltd and Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd, the Court held that a stay will not be granted merely because the decree holder may be unable to refund, and the applicant must show in the supporting affidavit the damages it would suffer. The decretal sum of Kshs 100,925 was not a huge sum, and the Respondent offered no tangible evidence of loss.
Unreasonable delay
The nearly three-month delay between judgment (23 October 2015) and filing the motion (2 February 2016) was inordinate and unexplained.
The Respondent's counsel had been present when the judgment date was set and had a professional obligation to attend or arrange representation; the explanation that a copy of the judgment was only obtained on 9 November 2015 was an excuse, not an explanation. Reminders sent to the Respondent went unanswered, so the delay could not be excused.
Security for due performance of the decree
The Respondent complied with the order to deposit the decretal sum, but compliance with only one limb did not entitle it to a stay given failure on the other two limbs.
The Court noted that the Respondent deposited security as ordered on 15 February 2016, but since the substantial loss and delay limbs both failed, satisfaction of the security limb alone could not carry the application. Nothing turned on this limb.
Chances of success of the appeal
The prospects of success of the intended appeal are not a consideration for a trial court faced with a stay application.
Citing Kuloba J in East African Breweries Limited v Castle Brewing Kenya Limited, the Court observed that it is invidious for a judge of the court appealed from to reconsider its own decision and assess the chances of the appeal succeeding. The Respondent's emphasis on the arguability of its appeal was therefore misplaced.
Legal principles established
#- A stay of execution pending appeal requires the applicant to demonstrate substantial loss, absence of unreasonable delay, and provision of sufficient security under Order 42 rule 6(2) of the Civil Procedure Rules.
- A trial court should not assess the viability or chances of success of an appeal against its own decision.
- Substantial loss must be demonstrated with tangible evidence in the supporting affidavit, not bare assertions.
Court orders
#- 1.The motion dated 2 February 2016 seeking stay of execution of the decree pending appeal is dismissed
- 2.Costs of the motion awarded to the Claimant
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Mumbi Kariuki v Director Pamoja Women Development Programme [2016] KEELRC 1570 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1570/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.