Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNotice of Motion dated 10.7.2020 (ELRC judicial review/appeal-side application)· [2021] KEELRC 1666 (KLR)

Rose Sang Tarus v Barclays Bank of Kenya Limited [2021] KEELRC 1666 (KLR)

Employment and Labour Relations Court
27 May 2021
OMONESMUS N. MAKAU
2,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Barclays Bank of Kenya, the applicant, moved the Employment and Labour Relations Court by Notice of Motion dated 10.7.2020 seeking a stay of execution of a judgment delivered on 26.6.2020 awarding the respondent, Rose Sang Tarus, Kshs. 2,400,000 as compensation for unfair termination, pending an intended appeal to the Court of Appeal. The application, supported by affidavits of the bank's legal counsel, was opposed by the respondent, who argued that the applicant had not met the Order 42 Rule 6(2) conditions and that she owned a Lavington apartment valued well above the decretal sum, sufficient to refund the decretum should the appeal succeed. Written submissions were filed by both parties. The applicant relied principally on the arguability of its appeal, offering to deposit the decretal sum in a joint account as security. In a ruling delivered by Onesmus N. Makau, J, the court framed the sole issue as whether stay should be granted and applied the three conditions in Order 42 Rule 6(2): absence of unreasonable delay, substantial loss, and security. The three-week delay was uncontested and not unreasonable. However, the applicant made only a generalized statement of substantial loss and adduced no evidence, and failed to rebut the respondent's proof of assets capable of refunding the decretal sum; the arguable-appeal argument was held to be a Court of Appeal consideration, not an Order 42 Rule 6 condition. The court found all orders sought spent since a Record of Appeal had been filed. The application was dismissed with costs.

Key legal issues

#
01

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

The application failed: there was no unreasonable delay, but substantial loss was not demonstrated and the orders sought were spent

Reasoning

The court set out the three conditions in Order 42 Rule 6(2): no unreasonable delay, substantial loss, and security. Delay of three weeks was not unreasonable and was uncontested. However, the applicant offered only a generalized statement of substantial loss, adduced no evidence, and failed to rebut the respondent's evidence of a Lavington apartment valued over Kshs. 8,500,000 capable of refunding the decretal sum. The arguable-appeal argument was misplaced as it is not an Order 42 Rule 6 condition.

p. 3
02

Whether the orders sought were capable of being granted

Holding

All orders sought had been spent as the Notice of Appeal and Record of Appeal had already been filed

Reasoning

The court observed as a parting shot that the prayers did not disclose a substantive order capable of being granted: stay pending lodging of the intended appeal was overtaken by events since the Record of Appeal was filed on 4.8.2020, rendering orders (a), (b) and (c) spent even if the burden had been discharged.

p. 3

Legal principles established

#
  • Substantial loss refers to actual loss that is demonstrable, not a generalized assertion
  • The legal burden of proving that the decree-holder cannot repay lies on the applicant; once raised, the evidential burden shifts to the decree-holder to show his resources
  • A stay applicant must satisfy all three conditions under Order 42 Rule 6(2) jointly, not severally
  • An arguable appeal is not one of the conditions for stay pending appeal under Order 42 Rule 6; it is enough for the superior court that a Notice of Appeal or Memorandum of Appeal has been lodged

Court orders

#
  1. 1.The application for stay of execution pending appeal is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure Actsection 3A
  • Constitution of KenyaArticle 50
  • Court of Appeal RulesRule 5(2)(b)
  • ELRC Procedure RulesRule 28(3)

Cases cited (9)

  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Victory Construction v BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Peter Mutuku Nthuku v Perimeter Protection Limited
    [2019] eKLR
  • Kwekwe Mwakela v Krystalline Salt Ltd
    [2015] eKLR
  • Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (In Liquidation) (Miscellaneous Application-2003/379)
    [2003] UGHC 80
  • National Industrial Credit Bank Limited –v- Aquinas Francis Wasike and Another
    [2006] eKLR
  • ABN Amro Bank N v Lemond Foods Limited
    Civil Application No.15 of 2002
  • Kenya Shell Limited v Benjamin Karuga Kibiru & anorther
    [1986] eKLR
  • Machira t/a Machira & Co Advocates v East African Standard
    [2002] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; section 3A of the Civil Procedure Act; Article 50 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rose Sang Tarus v Barclays Bank of Kenya Limited [2021] KEELRC 1666 (KLR)", Case Analysis (2021). Notice of Motion dated 10.7.2020 (ELRC judicial review/appeal-side application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1666/eng@2021-05-27

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