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ELRCDismissedCause No 335 of 2013· [2016] KEELRC 1709 (KLR)

Vincent Omollo Obuom v Catholic Diocese of Nakuru [2016] KEELRC 1709 (KLR)

Employment and Labour Relations Court
12 February 2016
RSRadido Stephen
880 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause enforcement of an award because the losing party showed no real loss, and punished shortcuts in decree processing.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru had, on 20 November 2015, found that the Claimant, who acted in person, had been constructively dismissed and awarded him Kshs 635,230/-. The Respondent, through Mr. Orege, moved the Court by a motion under certificate of urgency seeking stay of execution pending appeal, offering security and contending it stood to suffer substantial loss and that the application was brought without inordinate delay. The motion was unopposed by filing, but the Claimant responded in person, urging it was a delaying tactic and that no overwhelming chances of success had been demonstrated; he also noted auctioneer's charges of Kshs 94,000/- and a typographical error in the warrants. Applying Order 42 rule 6(2) of the Civil Procedure Rules and the principles distilled in Mukuma v Abuoga and other authorities, the Court found the application was brought without unreasonable delay (about two weeks after judgment) but that the supporting affidavit sworn by Fr. Benard Ngaruiya failed to demonstrate substantial loss or that the Claimant could not repay the decretal sum. The Court also noted, on the uncontroverted affidavit evidence, that a draft decree had not been served before the decree was sealed and execution commenced, deprecating the short-circuiting of the process. Accordingly, the motion was dismissed, but the Claimant was denied the auctioneer's charges, which he was to bear himself, and each party was ordered to bear its own costs of the application.

Key legal issues

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01

Substantial loss

Holding

The Respondent failed to demonstrate substantial loss; mere assertion that the decretal sum is large is insufficient

Reasoning

The Court perused the supporting affidavit sworn by Fr. Benard Ngaruiya and could not find where it was demonstrated that the Claimant would be unable to repay the decretal sum or what substantial loss would be occasioned. Following Odunga J in the Wananchi Group case, it is not sufficient to merely state that the decretal sum is a lot of money; the applicant must show the damages it would suffer if stay is not granted.

p. 2
02

Delay in bringing the application

Holding

The application was brought without unreasonable delay, about two weeks after judgment

Reasoning

The Court found this limb satisfied, as the motion was lodged on 3 December 2015 following the judgment of 20 November 2015, a delay of about two weeks, which the Court held was made without delay. However, satisfaction of this limb alone could not rescue the motion given the failure on substantial loss.

p. 2
03

Auctioneer's charges and sealing of decree

Holding

The Claimant's auctioneer's charges were denied because he short-circuited the process by failing to serve a draft decree before sealing

Reasoning

The Respondent's uncontroverted affidavit showed a draft decree was not served before a proper decree was sealed and execution commenced. The Court deprecated this practice, held the Deputy Registrar ought not to have sealed the decree without confirmation of service of a draft and lapse of 7 days, and denied the Claimant the auctioneer's charges of Kshs 94,000/- for short-circuiting the procedures.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must demonstrate substantial loss, bring the application without unreasonable delay, and offer sufficient security
  • A decree should not be sealed and issued until a draft decree has been served on the opposite party and a period for response has lapsed

Court orders

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  1. 1.The Respondent's motion for stay of execution pending appeal is dismissed
  2. 2.The Claimant is denied the element of auctioneer's charges and shall meet those charges himself
  3. 3.Each party to bear own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (6)

  • Mukuma v Abuoga
    (1988) KLR 645
  • Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others
    (2013) eKLR
  • Tabro Transporters Ltd v Absalom Dova Lumba
    (2012) eKLR
  • Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others
    (2010) eKLR
  • Cosmas Kipkoech Sigei v Madrugada Ltd & Ar
    (2010) eKLR
  • Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd
    (2014) eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vincent Omollo Obuom v Catholic Diocese of Nakuru [2016] KEELRC 1709 (KLR)", Case Analysis (2016). Cause No 335 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1709/eng@2016-02-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.