Tamarind Management Limited v Peter Sombo & another [2020] KEELRC 469 (KLR)
The bottom line
#A Kenyan court paused collection of a Kshs 3.2 million employment award, but only after the employer deposits the full amount in a joint interest-earning account.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss under Order 42 Rule 6 where a money decree is involved
The Respondents' failure to deny that they are unemployed and not in gainful employment meant the Appellant's apprehension that they could not refund the decretal sum stood uncontradicted, establishing substantial loss
The court accepted that where a money decree is involved, substantial loss lies in the respondent's inability to refund should the appeal succeed. The Respondents did not dispute that they lost their employment and chose not to address the court on their financial means. The court therefore found the Appellant's right of appeal could be prejudiced if stay was not granted.
Security for the due performance of the decree
Stay was granted conditional upon the Appellant depositing the entire decretal sum in an interest-earning account in the joint names of the parties' advocates within 30 days, failing which the stay would lapse automatically
Although the application offered a deposit to be determined by the court, the Appellant's written submissions sought a cashless undertaking. The court saw no justification for the departure and held that the Respondents, as judgment creditors, equally needed protection of the fruits of their judgment if the appeal failed.
Legal principles established
#- Stay of execution pending appeal may be granted conditionally on deposit of the decretal sum in a joint interest-earning account; where substantial loss by reason of the respondent's inability to refund is alleged, security protecting both sides balances their competing interests
Court orders
#- 1.An order of stay of execution of the judgment delivered by Hon. Lesootia A. Saitabu, PM on 13th February 2020, subject to the Appellant depositing the entire decretal sum in an interest earning account in the joint names of the parties' Advocates within thirty (30) days from the date of the ruling
- 2.Failure to adhere to the condition will lead to an automatic lapse of the stay granted
- 3.Costs of the application to be costs in the appeal
- On appeal from
- Chief Magistrate's Court (Mombasa)
- CMELR Case No. 449 of 2018 (consolidated with CMELR Case No. 450 of 2018)
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tamarind Management Limited v Peter Sombo & another [2020] KEELRC 469 (KLR)", Case Analysis (2020). Civil Appeal No 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/469/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.