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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 2004 (KLR)

Alfred Nathan Mvuko v Hakika Transport Services Limited [2019] KEELRC 2004 (KLR)

Employment and Labour Relations Court
21 March 2019
LNLINNET NDOLO
1,237 words in judgment
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The bottom line

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A Mombasa employment court paused execution of a money judgment, but only if the losing employer pays half now and secures the rest.

What this practically means

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Executive summary

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The Claimant obtained judgment against the Respondent on 15th December 2017 in the sum of Kshs. 143,937.50, delivered by Makau J. A decree was extracted on 2nd July 2018, and on 12th October 2018 the Deputy Registrar taxed the party and party bill of costs at Kshs. 158,274.20. The Respondent, having filed a Notice of Appeal on 19th December 2017, brought a Notice of Motion dated 31st October 2018 seeking stay of execution pending appeal to the Court of Appeal, supported by the affidavit of its Human Resource Manager, Rajab Yeri Kombe. The Respondent argued it had an arguable appeal, that execution would occasion it substantial loss since the Claimant, its former employee, had no known assets capable of refunding the decretal sum, and offered security by way of an insurance bond or bank guarantee. The Claimant opposed, contending the application was brought about a year after judgment, that no substantial loss was demonstrated, and that the application was designed to deny him the fruits of his judgment. Applying Order 42 Rule 6 of the Civil Procedure Rules and the authorities of Gatobu M'Ibutu Karotho and James Wangalwa, Linnet J found all three conditions satisfied: substantial loss was not rebutted, there was no unreasonable delay given the Respondent's participation in post-judgment proceedings, and security was offered. The court granted a conditional stay: 50% of the decretal sum to be paid within thirty days, the balance plus taxed costs deposited in a joint interest-earning account within thirty days, failing which the stay lapses automatically. Costs of the application were made costs in the appeal.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was established since the Claimant has no known assets capable of refunding the decretal sum, an assertion not debunked

Reasoning

The court noted the decree was for money and the Claimant's ability to refund was relevant. The Respondent submitted its former employee had no known assets, and the Claimant did not rebut this. That sufficed to show the Respondent would suffer substantial loss if execution proceeded and the appeal later succeeded.

p. 2
02

Unreasonable delay

Holding

The Respondent was not guilty of unreasonable delay; it filed its Notice of Appeal within a week, participated in post-judgment activities, and moved promptly once execution became imminent

Reasoning

The Claimant argued a delay of over ten months from judgment. The court examined the record and found the Notice of Appeal was filed within a week, the Respondent took part in all post-judgment proceedings including taxation, and applied without delay once execution loomed. Delay was assessed on the totality of circumstances.

p. 2
03

Security

Holding

The security condition was satisfied by the offer of an insurance bond or bank guarantee and a willingness to deposit the entire decretal sum plus costs in a joint interest-earning account

Reasoning

The Respondent offered an insurance bond or bank guarantee in its supporting affidavit, and counsel reiterated in oral submissions a readiness to deposit the decretal sum plus taxed costs into a joint interest-earning account. The court accepted this as fulfilling the third statutory condition for stay.

p. 2

Legal principles established

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  • The tripartite conditions for stay of execution (substantial loss, no unreasonable delay, and security) are inextricable and the absence of one may deny the court's discretion to grant stay
  • In a money decree, the capacity of the judgment-creditor to refund the decretal sum if the appeal succeeds is relevant to substantial loss

Court orders

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  1. 1.Conditional stay of execution of the judgment delivered on 15th December 2017 granted
  2. 2.Respondent to pay to the Claimant 50% of the decretal sum within thirty (30) days from the date of the ruling
  3. 3.Respondent to deposit the balance of 50% of the decretal sum together with the entire taxed costs into an interest earning account in the joint names of Counsel for the parties within thirty (30) days
  4. 4.Failure to meet any of the conditions leads to automatic lapse of the stay
  5. 5.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (2)

  • Gatobu M'Ibutu Karotho v Christopher Muriithi
    [2008] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Nathan Mvuko v Hakika Transport Services Limited [2019] KEELRC 2004 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2004/eng@2019-03-21

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