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ELRCDismissedNot stated in the extract· [2020] KEELRC 141 (KLR)

John Kahaguri Maina v Premier Tavern Hotel & 2 others [2020] KEELRC 141 (KLR)

Employment and Labour Relations Court of Kenya
11 December 2020
3,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onyango J) on the Respondents' application dated 3rd September 2020 seeking stay of execution of the court's judgment of 7th August 2020, by which the Claimant's employment was found unfairly terminated and he was awarded Kshs.408,000.00 plus costs of Kshs.50,000.00 and interest. The Applicants, who had lodged an appeal, argued that execution would render the appeal nugatory, that the Claimant was a man of straw incapable of refunding the decretal sum, and that they had complied with Order 42 Rule 6(2) of the Civil Procedure Rules, relying on Butt v Rent Restriction Tribunal, National Industrial Credit Bank v Wasike and Arun C. Sharma v Ashana Raikundalia. The Claimant, acting in person, opposed the application, contending it was an abuse of process, that the appeal lacked merit, that no proof of the ordered deposit of the decretal sum was furnished, and that he earned Kshs.84,509 monthly and could refund. The court framed a single issue: whether the Applicants met the threshold for stay. It found no inordinate delay in filing 26 days after judgment, but held the Applicants failed to prove substantial loss or furnish security: no evidence of the deposit was annexed or on the file, and the burden of proving inability to refund lay on the Applicants. Applying Vishram Ravji Halai, Kenya Shell v Kibiru, Samvir Trustee and Machira, the court dismissed the application with costs and directed that any decretal sum deposited in court be released to the Claimant.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

Filing 26 days after judgment did not amount to inordinate delay, and the delay was explained by the time taken to obtain the judgment for preparation of the memorandum of appeal

Reasoning

The application dated 3rd September 2020 was filed 26 days after the judgment of 7th August 2020. The court held this was not inordinate delay, accepting the Applicants' explanation that obtaining a copy of the judgment delayed preparation of the memorandum of appeal. The COVID-19 hardships were also urged by the Applicants in support.

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02

Whether the Applicants demonstrated substantial loss and furnished security as required by Order 42 Rule 6(2)

Holding

The Applicants failed: they did not annex evidence of the alleged deposit of the decretal sum, leaving the security a mere allegation, and did not prove the decree holder could not refund

Reasoning

Although the court had granted temporary stay on condition that the decretal sum be deposited within 14 days, no evidence of the deposit was annexed or found in the court file, so the condition was unfulfilled. The claimant, acting in person, showed he earned Kshs.84,509 monthly in the hospitality industry and could refund. The allegation that he was a man of straw was unsupported.

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Legal principles established

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  • A party seeking stay of execution of a money decree must demonstrate, with evidence, that the appeal will be rendered nugatory; it is not automatic that execution of a money decree renders an appeal nugatory
  • Where it is alleged that the decree holder cannot refund the decretal sum, the burden of proving that lies on the applicant for stay
  • Substantial loss must be proved by empirical or documentary evidence, not mere assertions

Court orders

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  1. 1.The application for stay of execution dated 3rd September 2020 is dismissed with costs
  2. 2.If the decretal sum has been deposited in court, the same be released to the Claimant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 rule 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Court of Appeal Rulesrule 82

Cases cited (8)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another (UR)
    Nairobi Civil Application 238 of 2005
  • Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Company Advocates & 2 Others
    [2014] eKLR
  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Century Oil Trading Company Ltd v Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Kenya Shell Limited v Kibiru
    [1986] KLR 410
  • Machira T/A Machira & Co. Advocates v East African Standard (No. 2)
    [2002] KLR 63
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules; Section 1A and 1B of the Civil Procedure Act; Articles 159(2)(d) and 48 of the Constitution (delivery of ruling)

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, "John Kahaguri Maina v Premier Tavern Hotel & 2 others [2020] KEELRC 141 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/141/eng@2020-12-11

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