Judy Wacera Njau v Belladonna Pharmacy Ltd [2020] KEELRC 780 (KLR)
The bottom line
#A Kenyan employment court paused payment of a Kshs.1 million award, but only after the employer deposited the full amount into a joint interest-earning account.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The application made on 18.7.2019 following judgment delivered on 31.5.2019 was not inordinate delay.
The court compared the date of the impugned judgment with the date of the application and found the interval of less than two months fell short of inordinate delay, satisfying that limb of Order 42 rule 6(2).
Whether substantial loss had been established
Substantial loss established because the claimant did not discharge the evidential burden of showing ability to refund the decretal sum.
The claimant alleged she was of ample means but tendered no evidence of income or assets capable of satisfying the decretal sum should the appeal succeed. Relying on ABN Amro Bank and Kenya Shell, the court held that failure to discharge that evidential burden means the applicant stands to suffer substantial loss and the appeal would be rendered otiose after execution.
Whether suitable security had been offered
Stay granted conditional on deposit of the whole decretal sum in a joint interest-earning account of both parties' advocates within 21 days.
The court held that stay protecting an appellant must be conditioned on safeguards ensuring the decreed sum is promptly availed to the decree-holder if the appeal fails, and adopted a joint interest-earning bank account as suitable security.
Legal principles established
#- The legal burden of proving substantial loss remains on the applicant for stay, but where inability to repay is asserted, the evidential burden shifts to the decree-holder to show ability to refund.
- Stay of execution should be granted on conditions safeguarding the decree-holder's interest should the appeal fail.
Court orders
#- 1.Stay of execution of the judgment and decree granted on condition that the whole decretal sum is deposited in an interest-earning bank account in the joint names of the Advocates for the two parties within 21 days from the date of the ruling
- 2.Each party to bear her own costs
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judy Wacera Njau v Belladonna Pharmacy Ltd [2020] KEELRC 780 (KLR)", Case Analysis (2020). Not stated in the extract (ELRC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/780/eng@2020-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.