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ELRCDismissedPetition No. 4 of 2020· [2021] KEELRC 460 (KLR)

Cliford Otieno Obiero v Lake Basin Development Authority [2021] KEELRC 460 (KLR)

Employment and Labour Relations Court
17 November 2021
RSRadido Stephen
932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) determines the Respondent's Motion dated 30 March 2021 seeking a stay of execution pending an intended appeal to the Court of Appeal in a petition in which Clifford Otieno Obiero had obtained judgment against the Lake Basin Development Authority. The Respondent argued that its intended appeal raised triable issues of law and fact, that the Petitioner would be unable to repay the decretal sum, and that the interests of justice required a stay, citing decisions including Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Benjamin Kibiru. The Petitioner opposed, contending that no triable issues were shown, that no appeal had been lodged within 60 days despite proceedings being ready by 5 February 2021, and that the Respondent moved the Court only after execution had commenced and its properties proclaimed. The Court applied the Order 42 Rule 6 principles: substantial loss, reasonable delay and security. It held that whether a party has an arguable appeal is not a factor in such applications; found the motion, filed about three months after judgment and only after execution commenced, was marked by inordinate and unexplained delay; and found that the Respondent's supporting affidavit nowhere demonstrated the substantial loss it would suffer, merely asserting generally that the Petitioner could not repay. Noting the Petitioner is a lawyer unlikely to be a man of straw, the Court dismissed the Motion with costs to the Petitioner and directed that, if the Respondent failed to secure further stay from the Court of Appeal within 15 days, monies deposited in Court be released to the Petitioner without further reference to the Court.

Key legal issues

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01

Delay in applying for stay of execution

Holding

The Respondent's motion, filed about three months after judgment and only after execution had commenced, was brought after inordinate and unexplained delay.

Reasoning

The Court noted the motion was brought about three months after delivery of judgment and only after the Petitioner had commenced execution. The Respondent offered no explanation for waiting until execution commenced and its properties were proclaimed before moving the Court. The Court found this constituted inordinate delay, one of the disqualifying factors under the Order 42 Rule 6 principles.

p. 2
02

Demonstration of substantial loss

Holding

The Respondent failed to demonstrate substantial loss, making only a general assertion that the Petitioner could not repay the decretal sum.

Reasoning

The Court endorsed the High Court's explanation in Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd that substantial loss must come out clearly in the supporting affidavit and that it is insufficient to merely state that the decretal sum is large. On perusing the Respondent's affidavit, the Court found no attempt to demonstrate the loss that would be occasioned, and observed that the Petitioner, being a lawyer, was unlikely to be a man of straw.

p. 2

Legal principles established

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  • Whether a party has an arguable appeal is not a factor for consideration in an application for stay of execution pending appeal in the High Court or the Employment and Labour Relations Court
  • The principles for stay of execution pending appeal are demonstration of substantial loss, moving the Court without unreasonable delay, and provision of security, derived from Order 42 Rule 6 of the Civil Procedure Rules
  • Substantial loss must be clearly demonstrated in the supporting affidavit, not merely asserted

Court orders

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  1. 1.The Motion dated 30 March 2021 and filed 8 April 2021 is dismissed with costs to the Petitioner
  2. 2.If the Respondent does not secure further stay orders from the Court of Appeal within the next 15 days, the monies deposited into Court should be released to the Petitioner without further reference to this Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 22(3), 27, 28, 29, 41(a)(b), 47(2), 50, 230
  • Fair Administrative Action ActNo. 4 of 2015
  • Employment Act, 2007Sections 5, 26, 45, 47
  • Salaries and Remuneration ActSections 11, 12, 13
  • Salaries and Remuneration Commission Act (Remuneration and Benefits of State and Public Officers) Regulations, 2013
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (9)

  • Multi-Media University & Ar v Prof Gitile Naituli
    (2014) eKLR
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Kenya Shell Ltd v Benjamin Kibiru & Ar
    (1986) eKLR
  • Mukuma v Abuoga
    (1988) KLR 645
  • Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others
    (2013) eKLR
  • Tabro Transporters Ltd v Absalom Dova Lumba
    (2012) eKLR
  • Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others
    (2010) eKLR
  • Antoine Ndiaye v African Virtual University
    (2015) eKLR
  • Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd
    (2014) eKLR
Jurisdiction invoked
Articles 20, 22(3), 41(a)(b), 27, 28, 29, 47(2) and 50 of the Constitution of Kenya, 2010; Employment Act, 2007; Fair Administrative Action Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cliford Otieno Obiero v Lake Basin Development Authority [2021] KEELRC 460 (KLR)", Case Analysis (2021). Petition No. 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/460/eng@2021-11-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.