Janta Kenya Limited v Millicent Achieng Otieno [2020] KEELRC 976 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant met the threshold for a stay of execution pending appeal
The Appellant complied with the security condition (deposit of Kshs 143,716/- into Court) and filed the application promptly, but failed to demonstrate substantial loss; the threshold for a stay was therefore not met
The court restated the three conditions from Order 42 Rule 6: security, substantial loss and absence of inordinate delay. Security had been deposited albeit late with explanation tendered. The application was filed within weeks of the judgment so delay did not arise. However, the Appellant made no attempt in its affidavit to prove substantial loss, the decisive condition. Despite this failure, since leave to appeal out of time had been granted and the record of appeal was ready, the court proceeded to give directions for submissions and extended the interim orders pending judgment rather than grant a final stay.
Whether leave to appeal out of time should be granted
Leave to appeal out of time was granted by the Court during the pendency of the application
The motion sought leave to lodge an appeal out of time against the judgment of 4 October 2019 delivered by the Chief Magistrate's Employment and Labour Court. The court noted that pending the delivery of the ruling it had granted the leave, and that the Record of Appeal was already ready. The memorandum and record of appeal were therefore treated as duly filed and the appeal was set down for submissions and mention dates.
Legal principles established
#- The conditions for stay of execution pending appeal, derived from Order 42 Rule 6 of the Civil Procedure Rules, are tender of security, demonstration of substantial loss if a stay is not granted, and moving the Court without inordinate delay
- An applicant for stay of execution must demonstrate substantial loss, which cannot be presumed
Court orders
#- 1.Interim stay of execution granted on condition that the Appellant deposit the decretal sum of Kshs 143,716/- into Court (complied with on 30 January 2020)
- 2.Leave to appeal out of time granted to the Appellant during the pendency of the application
- 3.Appellant to file/serve submissions on or before 3 July 2020
- 4.Respondent to file submissions on or before 3 August 2020
- 5.Mention on 3 August 2020 to confirm compliance/further directions
- 6.Pending judgment, interim orders extended
- 7.Costs to abide the outcome of the Appeal
- On appeal from
- Chief Magistrate's Employment and Labour Court (Magistrates' Court)
- CMEL No. 93 of 2019
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over the Magistrates' Court; motion under certificate of urgency seeking stay of execution under Order 42 Rule 6 and leave to appeal out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janta Kenya Limited v Millicent Achieng Otieno [2020] KEELRC 976 (KLR)", Case Analysis (2020). Not stated in the judgment (Arising from CMEL No. 93 of 2019, Chief Magistrate's Employment and Labour Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/976/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.