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ELRCDismissedNotice of Motion Application dated 25th October 2016· [2017] KEELRC 1739 (KLR)

Leonard Gethoi Kamweti v National Bank of Kenya Limited [2017] KEELRC 1739 (KLR)

Employment and Labour Relations Court
21 February 2017
HWHellen Wasilwa
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause a Kshs 8 million judgment because the party holding valuable securities wouldn't actually lose anything by paying first.

What this practically means

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Executive summary

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The Applicant, through a Notice of Motion dated 25th October 2016 supported by the affidavit of Habil A. Waswani, sought a stay of execution of the judgment delivered on 12th October 2016 by which the Respondent was awarded Kshs 8,050,728.00 less statutory deductions, plus costs and interest, pending an intended appeal. The Applicant argued that the Respondent would execute and render the appeal nugatory, that a substantial sum had already been paid at separation, and offered to comply with any security conditions. The Respondent filed Grounds of Opposition and an affidavit of Leonard Gethoi Kamweti, opposing the application as a third bite at a discretionary equitable remedy, an abuse of process, and noting that a money decree is not unique subject matter warranting preservation; he further asserted the Applicant holds his charged securities (Nairobi Block 137/87 and LR 209/10698 Nairobi) worth far more than the decretal sum. The application was disposed of by submissions. Applying Order 42 Rule 6(2) of the Civil Procedure Regulations, the court held that in a monetary claim where the Applicant holds the Respondent's securities exceeding the decretal sum, the Applicant would suffer no substantial loss even if the appeal later succeeded. The court dismissed the application for stay and ordered that execution proceeds. Judgment was read in open court on 21st February 2017.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify stay of execution

Holding

No substantial loss was demonstrated because the Applicant holds the Respondent's securities worth far in excess of the decretal sum, so repayment could be recovered even if the appeal succeeds

Reasoning

The court applied the two-limb test in Order 42 Rule 6(2): substantial loss plus no unreasonable delay, and security. In a purely monetary claim, the court found that the Respondent's securities held by the Applicant (Nairobi Block 137/87 and LR 209/10698 Nairobi) exceed the decretal sum, meaning the Applicant would not suffer substantial loss and could recover any sums paid should the appeal succeed.

p. 3
02

Whether stay should be granted as a discretionary equitable remedy

Holding

Stay was refused; the court held there was no legal basis for it on the facts

Reasoning

The court weighed the Respondent's grounds of opposition, including that the Applicant was seeking the discretionary remedy for the third time and that a money decree is not unique or exceptional property requiring preservation. Finding the securities adequate, the court concluded there was no legal reason to grant the stay and dismissed the application.

p. 3

Legal principles established

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  • For stay of execution under Order 42 Rule 6(2), the Applicant must show substantial loss, that the application was made without unreasonable delay, and must give security for due performance of the decree
  • Where the decree-holder's securities held by the judgment debtor are sufficient to meet the decretal sum, a monetary decree does not warrant a stay

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Execution of the judgment of 12th October 2016 proceeds

Authorities

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Legislation

  • Civil Procedure RegulationsOrder 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Regulations

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, "Leonard Gethoi Kamweti v National Bank of Kenya Limited [2017] KEELRC 1739 (KLR)", Case Analysis (2017). Notice of Motion Application dated 25th October 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1739/eng@2017-02-21

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