Jackson Angwenyi Abuga v Manmo Co-operative Savings & Credit Society Ltd [2021] KEELRC 1469 (KLR)
The bottom line
#A Kenyan court allowed an appeal to proceed but only if the employer deposited the full judgment money within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether substantial loss would result to the respondent if stay of execution is not ordered
- 2.Whether the application was brought without unreasonable delay
- 3.Whether security for the due performance of the decree has been offered
Key legal issues
#Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were met
Stay granted only conditionally; the respondent failed to demonstrate substantial loss, offered no security, and was guilty of inordinate delay, but a conditional stay was deemed imperative to secure the decree pending appeal.
The court applied the three conditions under Order 42 Rule 6(2). No loss was established where the judgment sum was valid orders of the court; execution was valid despite the appeal. Judgment was delivered on 26 April 2019 but the application was filed on 16 November 2020, over a year later, an inordinate delay not justified by the claimant's death. No security was offered. Nonetheless, given the pending appeal and the claimant's demise without substitution, a conditional stay requiring deposit of the full decretal sum within 30 days was ordered.
Whether the claimant's death without substitution affected the application
The death of the claimant did not defeat execution; the gist of the application was Order 42 Rule 6, not Order 24 Rule 3, and section 24(4) of the Employment Act secures benefits due to a deceased employee.
The respondent's primary argument was that execution was illegal because the claimant died on 8 May 2020 with no substitution by legal representatives. The court held the application was properly analysed under Order 42 Rule 6, not Order 24 Rule 3, and that even with the advocate's admission of the demise, section 24(4) of the Employment Act, 2007 secures a deceased employee's benefits, so the decree remained valid and executable.
Whether the application was filed without unreasonable delay
The application filed on 16 November 2020, over one year after the judgment of 26 April 2019, suffered inordinate delay that could not be justified by the claimant's death.
Judgment was delivered on 26 April 2019 and the appeal was filed on 5 July 2019, but nothing was done to secure the subject matter until after the claimant died on 8 May 2020. The court found the delay of over one year inordinate and held that the claimant ought to have enjoyed the fruits of his judgment before his death; the delay could not be excused on that account.
Legal principles established
#- An applicant for stay of execution pending appeal under Order 42 Rule 6(2) must satisfy three conditions: substantial loss, no undue delay, and security for due performance of the decree.
- The purpose of a stay of execution pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory.
- The mere filing of an appeal does not demonstrate substantial loss.
Court orders
#- 1.Stay of execution granted on condition that the respondent deposits the total decretal sum in court within thirty (30) days from the date of the order, failing which the stay shall lapse
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Unconditional stay of execution of the warrants of attachment issued on 3rd November 2020
The respondent failed to establish substantial loss, offered no security, and filed the application over one year after judgment, amounting to inordinate delay; stay was granted only on condition of depositing the decretal sum.
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, these shall be stay of execution herein on condition the respondent deposits the total decretal sum in court within thirty (30) days from the date hereof and failure to which the orders of stay shall lapse. Each party shall bear own costs.
The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory.
There are three conditions for granting of stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules
The mere filing of an appeal is not proof of substantial loss.
A successful litigant is entitled to the fruits of his judgement and as such should be protected by the court.
Issues in the judgment
#The claimant's party designation is inconsistent; the movant is described as the 'respondent' and the deceased decree-holder as 'claimant' though the matter is at execution stage, and the Sacco's name appears as 'Mamno' in some references to the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Angwenyi Abuga v Manmo Co-operative Savings & Credit Society Ltd [2021] KEELRC 1469 (KLR)", Case Analysis (2021). Not stated in judgment (Nairobi Court of Appeal Civil Appeal No. 301 of 2019 arises from it). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1469/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.