Irene Atieno v Henry De’souza & another [2018] KEELRC 420 (KLR)
The bottom line
#A Kenyan employment court refused to pause a money judgment on appeal because the employer never showed the employee couldn't repay it if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without inordinate delay
Filing the application 13 days after judgment constituted no delay
Judgment was delivered on 31st July 2018; the Notice of Appeal was filed on 14th August 2018 and the application on 13th August 2018, approximately 13 days after judgment. The court found this to be within reasonable time, satisfying the first condition under Order 42 Rule 6(2).
Whether the Applicants demonstrated substantial loss
They failed; no averment that the Claimant is unable to refund the decretal sum
Substantial loss occurs where the decree holder cannot refund the decretal sum if the appeal succeeds. The supporting affidavit contained no averment that the Claimant is a person of no means. Loss of employment does not render the Claimant a paaper incapable of refunding. Substantial loss was therefore not proved.
Whether the Applicants offered security
The offer was moot since substantial loss was not proved
The Applicants undertook to comply with any conditions as security. However, since the court found no substantial loss, the condition on security did not arise; the application failed on the essential condition.
Whether the court was functus officio to grant stay
Impliedly not; the court entertained the application under Order 42 Rule 6
The Claimant argued the court was functus officio. The Applicants relied on Order 42 Rule 6 and Speaker of the National Assembly v Karume. The court proceeded to determine the application on its merits, implying it had jurisdiction, though it dismissed the application on the substantive conditions.
Legal principles established
#- Substantial loss is established by showing the decree holder cannot refund the decretal sum if the appeal succeeds; the burden lies on the applicant
Court orders
#- 1.The Application dated 13th August, 2018 is dismissed with costs
- Jurisdiction invoked
- Order 42 Rules 6 and 7 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irene Atieno v Henry De’souza & another [2018] KEELRC 420 (KLR)", Case Analysis (2018). Cause No 1339 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/420/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.