Musa Mohamed Kaleve & 2 others v East Africa Portland Cement Company Limited [2021] KEELRC 2210 (KLR)
The bottom line
#A Kenyan employment court paused enforcement of a money judgment, but only if the employer first deposits the full awarded amount in a joint bank account.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The application filed on 4.3.2020 after judgment of 14.2.2020 was made without unreasonable delay, since execution could not issue before taxation of costs
The court noted the judgment was delivered on 14.2.2020 and the application filed 4.3.2020, less than a month later, before costs had been taxed. Relying on Section 94 of the Civil Procedure Act and Eldoret Grains Limited v National Cereals Produce Board, execution could not issue before ascertainment of costs, so the relevant period for assessing delay ran only from awareness that execution could proceed.
Whether the applicant will suffer substantial loss if stay is denied
Substantial loss was established because the claimants, being retired and having shown no assets or income, could not be shown to be capable of refunding the decretal sum
Applying Mateine Ole Kilelu, Mukuna v Abuoga and National Industrial Credit Bank v Wasike, the court held the applicant must demonstrate by affidavit a reasonable apprehension that the decretal sum would be irrecoverable. The claimants confirmed retirement and did not show any assets or source of income, so the apprehension was reasonable and substantial loss was established.
Whether security should be furnished and on what terms
Stay granted on condition the whole decretal sum be deposited into an interest-earning joint account in the names of counsel for both parties within 21 days
Although the applicant did not in its papers indicate willingness to offer security, it admitted willingness in submissions. The claimants accepted security provided half the decretal sum was released to them. The court rejected half-release because the claimants had not proved capacity to refund, and conditioned stay on deposit of the entire decretal sum in a joint interest-earning account.
Legal principles established
#- Stay of execution pending appeal should be granted where the applicant shows the decretal sum will not be recovered, or only with considerable difficulty, if the appeal succeeds, and that the applicant is ready and willing to furnish sufficient security
- The legal burden of showing inability of the decree-holder to refund lies on the applicant and must be discharged by affidavit on reasonable grounds, failing which the evidential burden does not shift
- Execution of a decree of a superior court cannot take place before ascertainment of costs, except with leave of the court, so time before taxation is not counted in assessing delay
Court orders
#- 1.An order for stay of execution of the judgment delivered on 14.2.2020 granted pending the hearing and determination of the intended appeal, on condition that the whole decretal sum be deposited within 21 days into an interest earning account opened in a reputable financial institution in the joint names of counsel on record for both parties
- 2.In default by the applicant to comply with the condition, the stay order shall lapse automatically after expiry of the 21 days period
- 3.Should the default be caused by the claimant, the applicant will have liberty to seek leave to deposit the security in Court
- 4.Costs of the application shall be in the appeal
- Jurisdiction invoked
- Rule 17 of the Employment and Labour Relations Court (ELRC) Procedure Rules; Order 42 Rules 6 & 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa Mohamed Kaleve & 2 others v East Africa Portland Cement Company Limited [2021] KEELRC 2210 (KLR)", Case Analysis (2020). Not stated in the judgment (references Cause number 2119 of 2014 as a separate matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2210/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.