Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (application dated 19th November 2018)· [2019] KEELRC 1635 (KLR)

Samuel Mwangi v Robert Nderitu t/a Nairobi Millennium Fast Food [2019] KEELRC 1635 (KLR)

Employment and Labour Relations Court
20 May 2019
MOMAUREEN ONYANGO
832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court paused enforcement of a judgment because the winner might not repay the money if the appeal succeeds.

What this practically means

#

Executive summary

#
This was a notice of motion dated 19th November 2018 by the respondent, Robert Nderitu, seeking a stay of execution of the judgment delivered on 2nd November 2018 pending an intended appeal, in a matter before the Employment and Labour Relations Court at Nairobi. The application was supported by the respondent's affidavit sworn on 19th November 2018, in which he stated that a judgment had been entered against him, that he had filed a notice of appeal, and that the appeal was arguable and would be rendered nugatory if stay was not granted. He also noted compliance with a court order of 3rd December 2018 to deposit the decretal amount in an interest-earning account in the names of two firms of advocates, and contended the respondent would suffer financial loss by paying a person who was not their employee. The claimant, Isaac Simiyu Kuloba, opposed the application through a replying affidavit sworn on 2nd January 2019, relying on Order 42 Rule 6(2) of the Civil Procedure Rules 2010 and three authorities, and submitting that the conditions for stay had not been met and that a successful litigant is entitled to execute unless substantive loss is shown. Justice Maureen Onyango restated the three conditions for stay: substantial loss, absence of unreasonable delay, and security. She found the notice of appeal filed within reasonable time (2nd to 15th November 2018), noted the decretal sum had been deposited in a joint interest-earning account, accepted the respondent's apprehension about the claimant's ability to refund the decretal sum if the appeal succeeded, and held that the right of appeal is constitutionally enshrined and part of access to justice. The court balanced the claimant's entitlement to the fruits of the decree against the respondent's right of appeal and allowed the application, staying execution of the decree pending the outcome of the appeal. No costs order was recorded.

Key legal issues

#
01

Conditions for grant of stay of execution under Order 42 Rule 6

Holding

The application satisfied the conditions: it was filed without unreasonable delay (judgment 2nd November 2018, Notice of Appeal 15th November 2018), security was given by depositing the decretal sum in a joint interest-earning account, and substantial loss was demonstrated by the respondent's apprehension that the claimant could not refund the decretal sum if the appeal succeeded.

Reasoning

The court restated the three conditions for stay: substantial loss, no unreasonable delay, and security. It found the Notice of Appeal filed within reasonable time. The decretal sum had been deposited in a joint interest-earning account in the names of both firms of advocates, satisfying security. The respondent's apprehension about the claimant's ability to refund the decretal sum constituted substantial loss, and the balance tilted in favour of allowing the stay.

p. 2
02

Right of appeal as part of access to justice

Holding

The right of appeal is constitutionally enshrined and forms part of the right of access to justice and equal protection of the law, supporting the grant of stay.

Reasoning

The court held that every person has a right to pursue their claim to the highest court, and that this right is part of access to justice and equal protection of the law. Combined with the respondent's compliance (deposit of the decretal sum and timely filing of the appeal), this weighed in favour of granting the stay.

p. 2

Legal principles established

#
  • Substantial loss for purposes of stay does not have to be a lot of money; hardship in recovering a decretal sum if the appeal succeeds suffices.
  • The court must balance the successful litigant's right to enjoy the fruits of the decree against the aggrieved party's constitutional right of appeal.

Court orders

#
  1. 1.Stay of execution of the decree delivered on 2nd November 2018 pending the outcome of the appeal by the respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010 (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Mwangi v Robert Nderitu t/a Nairobi Millennium Fast Food [2019] KEELRC 1635 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 19th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1635/eng@2019-05-20

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