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ELRCAllowedNot stated in the judgment (arising from CMC Case No. 318 of 2020)· [2022] KEELRC 662 (KLR)

Tire World Limited v Beryl Agatha Jarra [2022] KEELRC 662 (KLR)

Employment and Labour Relations Court (inferred from coram and subject matter; judgment does not expressly name the court)
24 February 2022
1,138 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 paused enforcement of a Kshs 1 million judgment because the employer deposited most of the money while it appeals.

What this practically means

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Executive summary

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This is a ruling on an application dated 22nd October 2021 seeking stay of execution of the judgment of Hon. E. Wanjala delivered on 24th September 2021 in CMC Case No. 318 of 2020, in which the Respondent was awarded Kshs.1,030,499.99 plus costs. The Appellant filed a memorandum of appeal and sought stay pending appeal, supported by an affidavit of Marion Nzyimi, the Human Resource Officer. The Respondent opposed, contending the appeal was not arguable and that she could refund the decretal sum if the appeal succeeded. Applying Order 42 rule 6 of the Civil Procedure Rules and the authorities of Vishram Ravji Halai, Michael Ntuothi Mutheu, Victory Construction and Mwaura Karuga, the court found: the application filed about one month after judgment was not unduly delayed; substantial loss was a qualitative concept and the Respondent had not proved ability to refund; security must cover the entire decree, costs and interest; and only an arguable appeal, not ultimate success, need be shown. The court granted stay conditional on the Appellant depositing 60% of the judgment sum with costs and interest in a joint interest-earning account operated by both advocates within 30 days, paying the remaining 40% to the Respondent within 30 days, and filing the appeal within 45 days. In default, the application would stand dismissed with costs and the Respondent free to execute. Costs were to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

The decretal sum of about Kshs.1,030,499.99 plus costs was substantial, and the Respondent had not proved ability to refund should the appeal succeed

Reasoning

The court treated substantial loss as a qualitative concept rather than a mathematical formula. Relying on Victory Construction, the burden shifted to the Respondent to demonstrate capacity to refund the decretal amount if the appeal succeeded, which the Respondent's affidavit did not discharge.

p. 2
02

Undue delay

Holding

Filing the application about one month after judgment was not unduly long

Reasoning

Judgment was delivered on 24th September 2021 and the application filed on 22nd October 2021. The court held the roughly one-month interval did not constitute undue delay for purposes of Order 42 rule 6.

p. 2
03

Security and arguable appeal

Holding

The memorandum of appeal disclosed arguable grounds and stay was granted conditional on deposit of 60% of the decretal sum

Reasoning

The court found the memorandum of appeal exhibited arguable grounds, which suffices without proof of ultimate success. To balance the interests of both parties, it conditioned the stay on a 60% deposit into a joint interest-earning account and payment of the balance 40% to the Respondent.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, application without undue delay, and security for due performance of the decree
  • Substantial loss is a qualitative, not merely mathematical, concept and the burden shifts to the Respondent to prove ability to refund the decretal sum
  • Security must cover the entire decree sum, costs and interest so as to achieve due performance of the decree ultimately binding on the appellant
  • The test on merits of the intended appeal is an arguable case, not ultimate success

Court orders

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  1. 1.Stay of execution of the decree in CMC Case No. 318 of 2020 granted on condition that the Appellant deposits 60% of the judgment sum in a joint interest-earning account in a reputable financial institution operated by the advocates of the respective parties, together with costs and accruing interest, within 30 days from the date of the ruling
  2. 2.The remaining 40% of the judgment sum to be paid to the Respondent within 30 days from the date of the ruling
  3. 3.The appeal to be filed within 45 days from the date of the application/ruling
  4. 4.In default, the application deemed dismissed with costs and the Respondent at liberty to execute forthwith
  5. 5.Costs to abide in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • VISHRAM RAVJI HALAI VS THORNTON & TURPIN
    Civil Application No.15 of 1990
  • MICHEAL NTUOTHI MUTHEU VS ABRAHAM KIVONDO
    E.052 OF 2021
  • VICTORY CONSTRUCTION
    (2019) eKLR
  • MWAURA KARUGA T/A LIMIT ENTRPRISES VS KENYA BUS SERVICES LIMTIED AND 4 OTHERS
    (2015) eKLR
On appeal from
Chief Magistrate's Court
CMC Case No. 318 of 2020
Jurisdiction invoked
Order 42 rule 6(1)(2) of the Civil Procedure Rules, read with Sections 1A and 1B of the Civil Procedure Act; appeal from a subordinate court

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, "Tire World Limited v Beryl Agatha Jarra [2022] KEELRC 662 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from CMC Case No. 318 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/662/eng@2022-02-24

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