Rono Cheruiyot & 15 others v Sbi International Holdings (Ag) Ltd [2020] KEELRC 126 (KLR)
The bottom line
#A Kenyan employer's year-long delay in seeking a stay of execution cost it dearly—the court dismissed its applications and released the money owed.
What this practically means
#Executive summary
#Key legal issues
#Contempt of court orders
Neither the auctioneer nor the Claimants were held in contempt because service of the 7 October 2020 stay orders before the 8 October 2020 attachment was not proved.
The Respondent relied on WhatsApp message extracts postmarked 8:53 am and 11:29 am on 8 October 2020 to prove service, but the affidavits did not disclose the numbers used or the owners of those numbers. The auctioneer deposed that attachment occurred at 8.00 am while the order was served at 2.40 pm. Without proof of service, contempt cannot be established.
Substantial loss
The Respondent failed to prove it would suffer substantial loss; asserting the Claimants had no income and that the attached vehicles were its tools of trade was insufficient, and the tools-of-trade point became otiose given the decretal sum had been deposited in Court.
Relying on High Court authority, an applicant must clearly show the damages it would suffer if stay is denied; merely stating that the decretal sum is large or that the decree-holder cannot refund it is not enough. The Respondent only deposed that the Claimants were not earning income and did not demonstrate damages, particularly since the decretal sum was already deposited in Court.
Inordinate delay in applying for stay
The delay of over one year between the judgment of 15 July 2019 and the stay application of 3 October 2020 was inordinate and unexplained; a stay application does not require certified copies of proceedings to be ready.
Judgment was delivered on 15 July 2019, a Notice of Appeal was sealed on 29 July 2019, yet the Respondent only requested typed proceedings on 26 July 2020 and filed the stay application on 3 October 2020, after the Claimants moved to execute. No sufficient explanation was offered for the delay, which the Court found inordinate.
Security for due performance of the decree
The Respondent complied with the direction to deposit the decretal sum in Court on 4 November 2020, so nothing turned on the security element.
On 2 November 2020 the Court had directed the Respondent to deposit the decretal sum to facilitate release of the attached motor vehicles. The deposits were made on 4 November 2020, satisfying the security condition. The Respondent's complaints about being denied a chance to defend the cause, prosecute its counterclaim, and the taxation of the Bill of Costs went to the merits of the appeal and were irrelevant to the stay application.
Legal principles established
#- Grant of a stay of execution pending appeal is a discretionary exercise requiring sufficient cause, absence of inordinate delay, demonstration of substantial loss and security for due performance of the decree
- A stay will not be granted merely because the decree-holder may be unable to refund the decretal sum
- A first-instance court considering a stay pending appeal should not consider the merits of the intended appeal, as that would amount to re-opening the hearing
Court orders
#- 1.The two Motions under examination (the first Motion dated 30 September 2020 filed 3 October 2020 and the third Motion dated 8 October 2020 filed 9 October 2020) are dismissed with costs
- 2.The decretal sum deposited in Court be released to the Claimants' advocate on record if the Respondent does not secure stay orders from the Court of Appeal within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; Rule 32(4) of the Employment and Labour Relations Court (Procedure) Rules (motion for stay of execution pending appeal); Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono Cheruiyot & 15 others v Sbi International Holdings (Ag) Ltd [2020] KEELRC 126 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause No. 141 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/126/eng@2020-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.