Kenya Long Distance Truck Drivers & Allied Workers Union v Malva Coach Builders Limited [2021] KEELRC 1493 (KLR)
The bottom line
#A Kenyan employer lost its bid to pause a worker payout because it waited over three years after judgment to ask the court for a stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of proceedings pending hearing of the pending appeal before the Court of Appeal should issue
- 2.Whether stay of execution pending determination of the pending appeal should issue
- 3.Whether the application was brought without inordinate delay
- 4.Whether the court should disturb the earlier order allowing the claimant's application dated 3rd December, 2020 for a decree
Key legal issues
#Delay in applying for stay of execution and proceedings
The application was dismissed as filed without good foundation after a delay of over 3 years and 6 months since judgment.
Judgment was delivered on 21st September 2018. The respondent never sought stay until January 2021. In the interim, the claimant's application of 3rd December 2020 seeking a decree of Ksh.4,059,934 was served on the respondent, went unopposed, and was allowed. Allowing stay at that stage would prejudice the claimant who had lawfully secured a decree. The court held that diligence and expedition are imperative in stay applications.
Whether the court could revisit the order allowing the claimant's application of 3rd December 2020
No; the order allowing that application for being unopposed could not be disturbed on the stay application.
The respondent was served with the 3rd December 2020 application and hearing notice for 20th January 2021 but neither attended nor filed a response, so the court allowed it unopposed. The court held there existed no reason to review that order, notwithstanding the respondent's complaints about non-compliance with Order 50 Rule 4 and Order 21 Rule 8 of the Civil Procedure Rules.
Effect of pending appeal on execution
Although a pending appeal ordinarily justifies staying proceedings, it did not justify stay in this case given the delay and the respondent's inaction.
The court acknowledged that proceedings relating to subject matter before the Court of Appeal should ordinarily be allowed to stop pending determination, and that an appeal (Civil Appeal No.108 of 2020) existed with hearing directions issued. However, the respondent's three-year delay and failure to oppose the decree application meant the balance tilted against granting stay.
Legal principles established
#- Stay applications must be filed promptly and without inordinate delay for the applicant to secure their rights.
- Stay of execution orders must be issued on good foundation and will not issue where delay would visit injustice on the decree-holder.
Court orders
#- 1.Application dated 26th January, 2021 dismissed with costs to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- ELRC (Procedure) Rules Rules 33(1)(d), 17 and 28; Civil Procedure Act sections 3A, 75, 78, 79G; Civil Procedure Rules Orders 42 Rule 16(1), 50 Rule 4, 22 Rule 18, 21 Rule 8
Relief refused
#Stay of proceedings pending hearing and determination of the pending appeal
The application was made over 3 years after judgment, without inordinate delay excuse; the respondent had been served with and failed to oppose the earlier application, which was allowed.
Stay of execution pending hearing and determination of the pending appeal
Delay of over 3 years and 6 months since judgment; issuing stay would visit injustice on the claimant who had secured a decree with the respondent's full knowledge.
Costs
Application dismissed with costs to the claimant
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, application dated 26th January, 2021 is found without merit and is hereby dismissed with costs to the claimant.
Stay of execution orders should be issued on good foundation.
Diligence and expedited application is imperative.
The delay apparent, to issue stay of execution at this stage would be to visit injustice upon the claimant who has since moved and secured a decree with the full knowledge of the respondent
Issues in the judgment
#The judgment records the claimant's application for a decree as dated 3rd December, 2020 but the respondent's grounds state the claimant 'applied for on 3rd December, 2019', an internal date inconsistency.
Statutory citations contain typographical errors: 'section 3!' for section 3A, 'Order 22 Rue 18(1)' for Order 22 Rule 18(1), and Rule 17 is rendered as '17 ad 28'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Long Distance Truck Drivers & Allied Workers Union v Malva Coach Builders Limited [2021] KEELRC 1493 (KLR)", Case Analysis (2021). Application dated 26th January, 2021 (arising from ELRC Cause; Judgment delivered 21st September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1493/eng@2021-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.