Husseini Builders Limited v Kyalo Kinyili [2021] KEELRC 801 (KLR)
The bottom line
#The Employment Court dismissed a bid to freeze a judgment being appealed because the applicant ignored the mandatory conditions for a stay in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant demonstrated substantial loss, absence of unreasonable delay and security as required by Order 42 Rule 6(1) for a stay of execution
The appellant did not address the mandatory conditions; the application failed.
The court restated the twin conditions of Order 42 Rule 6(1): substantial loss, application without unreasonable delay, and security for due performance of the decree. On the affidavits sworn by Mr Sajjad, nothing was addressed on these provisions, which are couched in mandatory terms. The appellant also failed to attach the trial judgment or a Record of Appeal, leaving the court unable to verify whether stay had been sought and declined below.
Whether the appellate court could set aside, review or vary the judgment of 3rd March, 2021
No - that power lies with the trial court unless the appeal is prosecuted and final orders issued.
The appellant sought to have the trial judgment set aside, reviewed or varied by the appellate court. The court held that this duty rests with the trial court; the appellate forum could not entertain such relief while the appeal remained unprosecuted. The appellant had enjoyed interim orders since May 2021 without advancing the appeal, rendering the motion premature and without merit.
Legal principles established
#- An applicant for stay of execution must satisfy the mandatory conditions in Order 42 Rule 6(1) - substantial loss, no unreasonable delay, and security for due performance
- The power to set aside, review or vary a first-instance judgment vests in the trial court, not the appellate court, unless the appeal is prosecuted to conclusion
- A court cannot grant stay where the record before it is empty of material - the applicant must show what steps were taken to arrest the impugned judgment
Court orders
#- 1.The application dated 19th May, 2021 (filed 11th May, 2021) is found without merit and is dismissed with costs to the respondent
- On appeal from
- Trial court (not named in the judgment)
- Jurisdiction invoked
- Order 51 Rule 1, Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules (appeal-side application for stay of execution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Husseini Builders Limited v Kyalo Kinyili [2021] KEELRC 801 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/801/eng@2021-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.