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ELRCDismissedNot stated in the judgment as reproduced· [2019] KEELRC 1233 (KLR)

Patrick Lubembe Asimani v Social Service League MP Shah Hospital [2019] KEELRC 1233 (KLR)

Employment and Labour Relations Court
3 July 2019
HWHellen Wasilwa
803 words in judgment
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The bottom line

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A Kenyan employment court refused to pause a money judgment because the losing party waited nine months too long to ask.

What this practically means

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Executive summary

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The Respondent/Applicants moved the Employment and Labour Relations Court by an application dated 28th March 2019 seeking stay of execution pending the hearing and determination of an appeal, invoking Rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules 2016 and Order 42 rule 6 of the Civil Procedure Rules. They asserted the application was filed without inordinate delay, that they would suffer substantial loss if stay was not granted, and that they were willing to furnish security. The Claimant/Respondent opposed the application, contending that the Respondent was not a man of straw unlikely to repay the decretal amount, and noted in affidavit evidence that the award was not colossal and that the application came long after judgment delivered on 18/6/2018. Justice Hellen Wasilwa found the application had been filed 9 months after judgment, which constituted inordinate and inexcusable delay given the court's earlier finding that even 3 months was inordinate, contrary to Order 42 rule 6(2). The court further found the Applicants had not demonstrated the substantial loss they would suffer, adopting the principle from the Sewe J authority that in a monetary decree the burden lies on the stay applicant to prove the decree-holder cannot refund sums paid, and that a successful litigant should not be denied the fruits of judgment absent such evidence. The court declined the stay, dismissed the application, and awarded costs to the Claimant/Respondent.

Key legal issues

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01

Whether the 9-month delay in filing the stay application was reasonable

Holding

The delay was inordinate and inexcusable, disqualifying the applicant from stay under Order 42 rule 6(2).

Reasoning

Judgment was delivered on 18/6/2018 and the application filed on 28/3/2019, a period of 9 months. The court noted it has previously found a 3-month delay inordinate, so 9 months was clearly excessive. Since Order 42 rule 6(2) requires the application to be made without unreasonable delay, the applicants failed this threshold condition and stay could not be granted.

p. 2
02

Whether the Applicants demonstrated substantial loss

Holding

The Applicants failed to show substantial loss or that the Claimant could not refund the decretal amount if the appeal succeeded.

Reasoning

The court adopted the principles in the Sewe J authority relied on by the Applicants: in a monetary decree an appeal is not rendered nugatory if payment is made, and the burden is on the applicant to prove the decree-holder cannot refund. The Claimant contended the Respondent was not a man of straw, and the applicants led no evidence of inability to repay, so the fruits of litigation should not be denied to the successful Claimant.

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy the conditions of no unreasonable delay, substantial loss and security; inordinate delay alone justifies refusal of stay.
  • In a monetary decree, the burden lies on the stay applicant to show the decree-holder cannot refund the decretal sum; absent such evidence, a successful litigant should enjoy the fruits of judgment.

Court orders

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  1. 1.Stay of execution orders sought declined
  2. 2.Application dated 28th March 2019 dismissed
  3. 3.Costs awarded to the Claimant/Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 32(2)
  • Civil Procedure RulesOrder 42 rule 6

Cases cited (2)

  • Benard Khauka Wafula vs Gachie Ngugi
  • Pamela Akinyi Opundo vs Barclays Bank of Kenya Limited
    (2011) eKLR
Jurisdiction invoked
Rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules 2016 and 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, "Patrick Lubembe Asimani v Social Service League MP Shah Hospital [2019] KEELRC 1233 (KLR)", Case Analysis (2019). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1233/eng@2019-07-03

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