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ELRCDismissedCause No. 735 of 2017· [2020] KEELRC 446 (KLR)

Jared Nyamweya Matuna v Kabansora Millers Ltd [2020] KEELRC 446 (KLR)

Employment and Labour Relations Court
25 September 2020
838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) in Cause No. 735 of 2017, dismissing the Respondent's second application for stay of execution. An ex-parte judgment had been delivered on 17 January 2020, and the Respondent's earlier application for stay of execution, setting aside of the judgment and leave to defend was dismissed on 22 May 2020. The Respondent then filed a motion dated 4 June 2020 seeking a stay of execution pending the hearing of that application and pending an intended appeal against the 22 May 2020 Ruling, arguing that the intended appeal had good chances of success, that the advocate's mistake shut it out of the hearing, that the Claimant was a man of unknown means who could not refund the decretal sum, and that it would suffer substantial loss. The Claimant opposed, pointing to the prior dismissed application, lack of evidence of substantial loss and lack of evidence of his impecuniosity. The Court, restating the well-known principles for stay and setting aside ex-parte judgments, held that a bare assertion that the decree-holder cannot refund the decretal sum is not a good enough reason for a stay without more; that substantial loss must be clearly demonstrated in the supporting affidavit; and that the Respondent had failed to meet the requisite test. The Court further found that, as the second attempt to secure the same orders with mutated reasons, the application was an abuse of the court process. The motion was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the decree-holder's alleged impecuniosity justifies a stay of execution

Holding

No; a bare assertion of the decree-holder's inability to refund, unsupported by evidence, is not sufficient

Reasoning

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.

p. 2
02

Whether the Respondent demonstrated substantial loss

Holding

No; the Respondent did not demonstrate it would suffer substantial loss if the stay was not granted

Reasoning

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.

p. 2
03

Whether the application was an abuse of court process

Holding

Yes; it was the Respondent's second attempt to secure a stay/setting aside, with only the reasons having mutated

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The motion dated 4 June 2020 is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Cases cited (5)

  • Kanji Naran v Velji Ramji
    (1954) 21 EACA 20
  • Pithon Waweru Maina v Thuka Mugiria
    (1983) eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Cosmas Kipkoech Sigei v Madrugada Ltd & Ar
    (2010) eKLR
  • Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over Cause No. 735 of 2017 and applications arising therein

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, "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.