John Muriithi & 8 others v Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordia Hospital” [2020] KEELRC 998 (KLR)
The bottom line
#Kenya's Employment Court granted a stay of execution only on condition that the full decretal sum is deposited into a joint interest-earning account within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution pending appeal
The Applicant satisfied the Order 42 rule 6(2) conditions: it filed the Notice of Appeal within 14 days, applied before expiry of the 30-day interim stay, expressed willingness to provide security, and raised a genuine apprehension of inability to recover the decretal sum, which the Respondents failed to rebut
The Court restated the Order 42 rule 6(2) requirements of substantial loss, no unreasonable delay and security. It found reasonable promptness established and willingness to furnish security indicated. The Applicant's apprehension that the Respondents could not restitute the decretal sum was not displaced by any evidence of the Respondents' resources or salaries, so the application was found merited, subject to a conditional deposit.
Evidentiary burden on substantial loss in a money decree
The Applicant's reasonable apprehension of non-restitution shifted the evidentiary burden to the Respondents to demonstrate their financial capacity, which they failed to do
The Applicant submitted that it had no knowledge of the Respondents' finances and that its reasonable apprehension shifted the evidentiary burden to the Respondents to prove their ability to restitute. The Respondents argued that a money-decree applicant must prove the decree-holders are men of straw and relied on the Evidence Act. The Court accepted the Applicant's position, noting the Respondents adduced no evidence of assets or earnings.
Jurisdiction to grant stay pending appeal
The Court found the application merited and exercised its jurisdiction under Order 42 rule 6(2), notwithstanding objections that the Court was functus officio or lacked jurisdiction
Several Respondents argued the Court was functus officio after judgment, that the application belonged to the Court of Appeal, and that the ELRC lacked jurisdiction under section 12(3)(i) and (viii) of the ELRC Act and Rule 17 of the ELRC (Procedure) Rules 2016. The Court did not rule on these objections expressly but proceeded to exercise stay jurisdiction under Order 42 rule 6(2) of the Civil Procedure Rules.
Legal principles established
#- An applicant for stay of execution must demonstrate reasonable promptness, willingness to provide security, and substantial loss; where the respondents fail to demonstrate capacity to refund the decretal sum should the appeal succeed, stay will issue
Court orders
#- 1.Application for stay of execution of the Judgment and Decree dated 25/10/2019 pending the intended appeal allowed
- 2.Stay granted on condition that the entire decretal sum be deposited in an interest earning account held in the joint names of counsels on record and the Respondents within 60 days
- 3.In default of the deposit, execution to proceed
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules; jurisdictional objection raised under section 12(3)(i) and (viii) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muriithi & 8 others v Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordia Hospital” [2020] KEELRC 998 (KLR)", Case Analysis (2020). Cause 153 of 2015 (consolidated with Causes 212 and 214 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/998/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.