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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 1816 (KLR)

Peter Mutuku Nthuku v Perimeter Protection Limited [2019] KEELRC 1816 (KLR)

Employment and Labour Relations Court
9 April 2019
1,756 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 fully halt execution of a judgment because the party asking for a stay couldn't prove they'd lose the money if they won their appeal.

What this practically means

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Executive summary

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The Respondent (the Applicant) moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 28th November 2018 seeking stay of execution of the decree arising from the judgment delivered on 31st July 2018, pending her intended appeal. She relied on the earlier ruling of 23rd November 2018 which had granted her leave to file a notice of appeal out of time, her compliance with its terms (filing the notice of appeal, seeking certified proceedings, and paying the undisputed sum of Kshs. 38,285 plus Kshs. 15,000 to counsel), and the proclamation of her assets by M/s Icon Auctioneers on 28th November 2018. The Claimant opposed, contending that no substantial loss or arguable appeal had been demonstrated. The court framed a single issue: whether the Applicant had fulfilled the requirements for stay pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules. It found the application was made without undue delay, but held that the Applicant failed to discharge her burden of proving substantial loss, since a general statement that the Claimant was not a man of means was insufficient, and execution is a lawful process that does not of itself constitute substantial loss. However, because the decretal sum was already held in an interest-earning joint account opened by counsel, the court ordered that the status quo remain pending the appeal, with the money remaining as security save for taxed costs, which were to be paid to the Claimant forthwith. The stay of execution itself was refused.

Key legal issues

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01

Whether the application for stay was made without undue delay

Holding

The application was filed without undue delay as it was lodged immediately after the proclamation of assets and immediately after leave to file the Notice of Appeal was granted on 23rd November 2018.

Reasoning

Although three months had lapsed since judgment, the earlier stay application had been found premature and the Applicant was only granted leave to appeal on 23rd November 2018. She filed the Notice of Appeal the same day and the instant application immediately upon the 28th November 2018 proclamation, so the delay was adequately explained.

p. 3
02

Whether the Applicant demonstrated substantial loss

Holding

The Applicant failed to demonstrate substantial loss; a general statement that the Claimant is not a man of means did not discharge the applicant's legal burden of proof.

Reasoning

Under Order 42 Rule 6(2), the applicant must show substantial loss. The burden rests on the applicant to prove the decree holder cannot refund the decretal sum if the appeal succeeds. The applicant made only a general, unparticularised assertion of the Claimant's lack of means, which could not shift the burden to the Claimant; commencing execution is a lawful process that does not by itself constitute substantial loss.

p. 3
03

Whether sufficient security had been given

Holding

The court found no harm in directing that the decretal sum already deposited in the advocates' joint interest earning account remain there pending the appeal, save that taxed costs be paid to the Claimant forthwith.

Reasoning

Despite finding that substantial loss would not be suffered, the court exercised its discretion pragmatically: the decretal sum was already held in an interest-earning joint account opened by counsel, so retaining it as security preserved the appeal's utility without prejudicing either party, while the Claimant received the taxed costs immediately.

p. 3

Legal principles established

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  • The burden lies on the applicant for stay to prove that the decree holder will be unable to refund the decretal sum if the appeal succeeds; a mere general assertion that the decree holder is a person of no means does not discharge that burden.
  • Commencement of execution by itself does not amount to substantial loss.

Court orders

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  1. 1.That the status quo remains pending the hearing and determination of the appeal or until further orders of this court
  2. 2.That the money deposited as security in the advocates' joint interest earning account remains there pending the outcome of the appeal, save for costs of the suit
  3. 3.That the costs taxed by the Deputy Registrar of the court shall be paid to the claimant forthwith

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRules 27 and 30
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 159(2)

Cases cited (5)

  • Halai & Another v Thornton & Turpin
    (1963)
  • APA Insurance Limited v Michael Kinyanjui Muturi
    [2016] eKLR
  • P.J. Dave Flowers Ltd v David Simiyu Wamalwa
    [2017] eKLR
  • James Wangalwa & Ano. v Agnes Naliaka Cheseto
  • Timsales Limited v Hiram Gichohi Mwangi
    [2013] eKLR
Jurisdiction invoked
Rule 27 and 30 of the Employment and Labour Relations Court (Procedure) Rules, Order 22 Rule 22 of the Civil Procedure Rules, Section 12 of the Employment and Labour Relations Court Act and Article 159(2) of the Constitution

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, "Peter Mutuku Nthuku v Perimeter Protection Limited [2019] KEELRC 1816 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1816/eng@2019-04-09

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