Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedApplication dated 30th July 2018 (in a claim with judgment dated 22nd February 2018)· [2019] KEELRC 2108 (KLR)

Moses Oloo Miseh v Migori County Assembly Service Board [2019] KEELRC 2108 (KLR)

Employment and Labour Relations Court
7 March 2019
MNMathews N. Nduma
536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause enforcement of an employment judgment because the losing party never actually appealed against that judgment.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court by Mathews N. Nduma, Judge, delivered on 7th March 2019 on an application dated 30th July 2018 by the respondent/applicant seeking stay of execution of a judgment and decree dated 22nd February 2018. The judgment had been entered ex parte after the respondent failed to enter appearance or file a defence despite service; an application to set aside that judgment had already been heard and dismissed on 19th July 2018. The applicant argued it had a right to fair hearing, would suffer irreparable and substantial loss, that court process was never served on it, and that the application was made without delay. The claimant opposed via grounds of opposition, contending the Order 42 Rule 6 requirements were unmet, that the decretal sum of Kshs 2,155,479 was paltry against the respondent's annual budget of hundreds of millions, and alleging forgery of the deponent's signature. The court held that the applicant's notice of appeal targeted only the ruling declining to set aside the judgment, not the judgment itself, and that stay of execution cannot be granted over a judgment that has not been appealed against. The court further found no substantial loss demonstrated given the modest decretal sum, noted the delay of over five months, and dismissed the application. No costs order appears in the ruling.

Key legal issues

#
01

Whether stay of execution of an unappealed judgment may be granted

Holding

Stay was refused because no appeal had been filed against the judgment of 22nd February 2018; only the ruling declining to set aside the judgment was being appealed.

Reasoning

The court noted the applicant filed a notice of appeal only against the ruling dismissing its application to set aside the ex parte judgment, not against the judgment itself. Without an appeal against the judgment and decree, there is no legal or factual basis to stay execution. Additionally, the applicant delayed over five months and failed to demonstrate irreparable loss.

p. 1
02

Whether the applicant would suffer substantial loss if stay was not granted

Holding

No substantial loss established; the decretal sum of Kshs 2,155,479 was paltry compared to the respondent's annual budget of hundreds of millions.

Reasoning

The claimant argued the decretal sum was insignificant against the respondent's huge budget. The court accepted this and was not satisfied that the respondent would suffer irreparable loss and damage if stay was denied, a key requirement under Order 42 Rule 6.

p. 1

Legal principles established

#
  • Stay of execution cannot be granted in respect of a judgment that has not been appealed against

Court orders

#
  1. 1.Application for stay of the judgment and decree delivered on 22nd February 2018 dismissed

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
null
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moses Oloo Miseh v Migori County Assembly Service Board [2019] KEELRC 2108 (KLR)", Case Analysis (2019). Application dated 30th July 2018 (in a claim with judgment dated 22nd February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2108/eng@2019-03-07

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