Salim Nassoro Mwariwa & 3 others v Hakika Transport Services Limited [2020] KEELRC 1468 (KLR)
The bottom line
#A Mombasa court paused collection of an employment award because the winning employees never promised to refund the money if they lost the appeal.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Court found substantial loss established because the Claimants filed only grounds of opposition, gave no replying affidavit and no commitment to refund the decretal sum if the appeal failed.
The Court applied Order 42 Rule 6(2) conditions. Relying on the line of authorities on inability to refund, it observed that the Claimants' silence on reimbursement cast doubt on their willingness and ability to be bound by the rules of litigation, and concluded the Respondent had satisfied the substantial loss threshold.
Unreasonable delay
No unreasonable delay; the application was filed once execution became imminent upon taxation of costs.
A Notice of Appeal was lodged on 8th June 2018 and served on 13th June 2018. The application of 17th October 2019 followed taxation of the party and party bill of costs, when the threat of execution materialised; the Court could not fault the Respondent for delay.
Security
The Respondent's undertaking to deposit the entire decretal sum in a joint interest-earning account was reasonable security.
The Human Resource Manager deponed that the Respondent was prepared to post appropriate security, and counsel undertook to deposit the full decretal sum in a joint interest-earning account in the names of both parties' advocates, satisfying the second limb of Order 42 Rule 6(2).
Legal principles established
#- Stay of execution balances the right of appeal against the right of a successful party to enjoy the fruits of judgment
- A judgment debtor's mere assertion that a decree holder cannot refund the decretal sum is not of itself sufficient for stay
- Where a claimant gives no undertaking or commitment to refund the decretal sum, doubt as to their ability to repay supports a finding of substantial loss
Court orders
#- 1.Execution of the judgment and decree of O.N Makau J dated 11th May 2018 and delivered on 23rd May 2018 is stayed pending the hearing and determination of the Respondent's appeal in the Court of Appeal
- 2.The entire decretal sum shall be deposited in a joint interest earning account in the names of the Advocates for the Claimants and the Advocates for the Respondent within thirty (30) days from the date of the ruling
- 3.Failure to comply with the deposit order will lead to automatic lapse of the stay granted
- 4.Costs of the application to be costs in the appeal
- On appeal from
- Environment and Labour Relations Court (judgment of O.N Makau J)
- Not stated
- 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, "Salim Nassoro Mwariwa & 3 others v Hakika Transport Services Limited [2020] KEELRC 1468 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1468/eng@2020-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.