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ELRCDismissedNotice of Motion dated 7th December 2020· [2021] KEELRC 1548 (KLR)

Peter Mbaka Omweru & 15 others v Crown Industries Limited [2021] KEELRC 1548 (KLR)

Employment and Labour Relations Court
21 June 2021
MNMathews N. Nduma
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause an employment judgment payment because the employer offered no real evidence it would lose the money.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 7th December 2020 in which the applicant sought a stay of execution of the judgment delivered on 11th November 2020 pending the hearing and final determination of its intended appeal to the Court of Appeal. The application was supported by the affidavit of Chetan Sanghrajka, who deponed that the claimants were declared redundant in 2013 due to financial constraints and that the applicant risked substantial loss through execution despite meritorious grounds of appeal, and offered to give security. The claimants/respondents opposed the application, submitting that stay is governed by Order 42 Rule 6 of the Civil Procedure Rules, that the burden lay on the applicant to prove substantial loss on a balance of probabilities, and that no such evidence was adduced; they also characterized the application as a tactic to prolong execution. The respondent relied on Butt vs Rent Restriction Tribunal on the discretionary nature of stay. The court, applying Kenya Shell Limited vs Benjamin Karuga Kibiru, held that although the application was brought timeously, the applicant offered only a bare assertion of substantial loss with no evidence of the claimants' financial status or ability to refund the decretal sum of Kshs. 2,051,083. It further noted that no draft memorandum of appeal was attached to demonstrate the appeal was arguable. Noting that the claimants had waited since 2015 for judgment, the court found the balance of convenience favoured letting them enjoy the fruits of judgment. The application was dismissed with costs.

Key legal issues

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01

Substantial loss

Holding

The applicant failed to demonstrate substantial loss as required under Order 42 Rule 6

Reasoning

The supporting affidavit of Chetan Sanghrajka contained only a general apprehension of substantial loss. No evidence was adduced on the financial status of the claimants or why they would be unable to refund the decretal sum if paid and the appeal later succeeded. The burden lay on the applicant to prove substantial loss on a balance of probabilities, which it failed to discharge.

p. 2
02

Arguability of the intended appeal

Holding

No draft memorandum of appeal was attached; the appeal's arguability was not demonstrated

Reasoning

The court observed that the application was not supported by a draft memorandum of appeal. Merely reciting intended grounds of appeal in a supporting affidavit does not show the appeal is arguable. This weighed against the exercise of the court's discretion to grant a stay pending the filing and prosecution of the appeal at the Court of Appeal.

p. 2
03

Balance of convenience and delay in litigation

Holding

Balance of convenience favoured the claimants enjoying the fruits of judgment

Reasoning

The suit was filed in 2015 and judgment was only delivered on 11th November 2020. The claimants had waited a long time for the judgment. Letting them enjoy the fruits of judgment pending the intended appeal was the course that best met the justice of the case, since no substantial loss or inability to refund had been demonstrated.

p. 2

Legal principles established

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  • An applicant for stay of execution must adduce empirical or documentary evidence of substantial loss; mere assertions do not suffice
  • Mere reference in a supporting affidavit to intended grounds of appeal, without attaching a draft memorandum of appeal, does not demonstrate that an appeal is arguable
  • Where stay is not established, the balance of convenience favours a decree-holder enjoying the fruits of judgment pending appeal

Court orders

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  1. 1.The Notice of Motion dated 7th December 2020 is dismissed for lack of merit
  2. 2.Costs of the application to the Claimants/Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 41 Rule 6
  • Civil Procedure Rules, 2010Order 42 Rule 2
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 21 rule 1
  • Court of Appeal RulesRule 82(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 18

Cases cited (2)

  • Kenya Shell Limited vs Benjamin Karuga Kibiru and Another
    [1986] eKLR
  • Butt vs Rent Restriction Tribunal
    [1982] eKLR 417
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Peter Mbaka Omweru & 15 others v Crown Industries Limited [2021] KEELRC 1548 (KLR)", Case Analysis (2021). Notice of Motion dated 7th December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1548/eng@2021-06-21

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