Christine Kinya Gikunda v Mantrac Limited [2019] KEELRC 634 (KLR)
The bottom line
#A Kenyan court paused enforcement of a Kshs 1.2 million judgment, but only because the company agreed to deposit the money in a protected joint account.
What this practically means
#Executive summary
#Key legal issues
#Threshold for stay of execution pending appeal
The court accepted the two-pronged thresholds: substantial loss and security under Order 42 Rule 6(2), and arguability plus nugatory-ness under the Court of Appeal Rules line of authority. The applicant's expressed fears and willingness to abide by conditions, coupled with the decree holder's failure to demonstrate ability or willingness to refund, justified a conditional stay.
The court reviewed Order 42 Rule 6(2) requirements and authorities on substantial loss, noting that loss must be proved by affidavit evidence. It distinguished the Order 42 threshold from the Rule 5(2)(b) test (arguable appeal and nugatory-ness). Finding the applicant willing to give security and the decree holder unable to show she would refund the decretal sum, the court held the interests of justice were best served by stay conditioned on deposit of the decretal sum.
Legal principles established
#- There are two separate criteria for grant of stay pending appeal: under Order 42 Rule 6(2) of the Civil Procedure Act the threshold is proof of substantial loss and security; under Rule 5(2)(b) of the Court of Appeal Rules the appellant must show an arguable appeal that would be rendered nugatory.
- Where a decree holder cannot show ability or willingness to refund the decretal sum should the appeal succeed, stay may be granted on condition that the decretal sum is deposited in a joint interest-earning account.
Court orders
#- 1.Stay of execution of the judgment delivered on 14th June 2019 and any consequential orders, pending appeal, granted subject to the appellant/judgment debtor depositing the decretal sum into an interest-earning account in the joint names of counsel for the claimant and counsel for the applicant within 30 days from the date of ruling, failing which the stay orders lapse
- 2.Costs of the application shall be in the appeal
- On appeal from
- Court of Appeal (intended appeal from the ELRC judgment of Abuodha J.)
- Not stated (Notice of Appeal filed; no appeal number given)
- Jurisdiction invoked
- Sections 3(1), (2) and (3), 12, 13, 17 and 20 of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules; Articles 159(2) and 164(3) of the Constitution of Kenya; Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Kinya Gikunda v Mantrac Limited [2019] KEELRC 634 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/634/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.