Jared Nyamweya Matuna v Kabansora Millers Ltd [2020] KEELRC 446 (KLR)
The bottom line
#A Kenyan employer lost its second bid to pause enforcement of an ex-parte judgment because it offered no evidence of real loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the decree-holder's alleged impecuniosity justifies a stay of execution
No; a bare assertion of the decree-holder's inability to refund, unsupported by evidence, is not sufficient
The Respondent asserted the Claimant was a person of unknown means who could not refund the decretal sum if the appeal succeeded, but provided no evidence of the Claimant's means. The Court endorsed the dictum that a stay will not be granted on the ground that the decree-holder is a pauper, holding that such an appeal without more is not a good enough reason for a stay pending appeal.
Whether the Respondent demonstrated substantial loss
No; the Respondent did not demonstrate it would suffer substantial loss if the stay was not granted
The Court adopted the High Court's guidance in the Wananchi Group case that substantial loss is a crucial issue which must come out clearly in the supporting affidavit, with the applicant showing the damages it would suffer if stay is not granted. The Respondent merely stated that the decretal sum was a lot of money and did not demonstrate any substantial loss.
Whether the application was an abuse of court process
Yes; it was the Respondent's second attempt to secure a stay/setting aside, with only the reasons having mutated
The Respondent had previously applied for stay of execution and setting aside of the 17 January 2020 judgment, and that application was dismissed on 22 May 2020. The fresh motion merely advanced mutated reasons for the same orders. The Court therefore found the second motion to be an abuse of the court process and dismissed it with costs to the Claimant.
Legal principles established
#- The inability of a decree-holder to refund the decretal sum is not, without more, a good reason for granting a stay of execution pending appeal
- Substantial loss must be clearly demonstrated in the supporting affidavit and not merely asserted by reference to the size of the decretal sum
Court orders
#- 1.The motion dated 4 June 2020 is dismissed
- 2.Costs of the application to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over Cause No. 735 of 2017 and applications arising therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Nyamweya Matuna v Kabansora Millers Ltd [2020] KEELRC 446 (KLR)", Case Analysis (2020). Cause No. 735 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/446/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.