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ELRCAllowedNot stated in the judgment (arising from KISUMU CELRC NO. 223 OF 2019)· [2022] KEELRC 689 (KLR)

Protective Custody Limited v Tom Omunabi Omukuba [2022] KEELRC 689 (KLR)

Employment and Labour Relations Court
24 February 2022
868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court paused enforcement of a Kshs. 819,989 award against Protective Society Limited, but only if the company pays part and secures the balance.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th October 2021, Protective Society Limited, the Applicant/Appellant, sought stay of execution of the judgment and decree of 23rd September 2021 in Kisumu CELRC No. 223 of 2019 (Tom Omunabi Omukuba v Protective Society Limited) pending appeal, the decretal sum being Kshs. 819,989.00. The Applicant contended the award was erroneous, that the Respondent had no known assets or source of income to refund the sum should the appeal succeed, and undertook to deposit security. The Respondent opposed, arguing the appeal raised no arguable issues, and proposed release of half the decretal sum with the balance held in a joint interest-earning account. The court, Baari J, applied the Order 42 Rule 6 criteria as articulated in Stephen Wanjohi v Central Glass Industries Ltd and Vishram Ravji Halai v Thornton & Turpin: sufficient cause, substantial loss, no unreasonable delay and security. The unrebuted averment that the Respondent had no known income or assets established potential substantial loss; the filing of the application a day short of a month after judgment was not an unreasonable delay; and the Applicant undertook to furnish security. Balancing the parties' positions, the court granted the stay on conditions: the Applicant to release Kshs. 300,000 to the Respondent within 30 days and deposit the balance in a joint interest-earning account within 45 days, failing which the stay would lapse and the Respondent would be at liberty to execute.

Key legal issues

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01

Whether the Applicant satisfied the Order 42 Rule 6 conditions for stay of execution pending appeal

Holding

The application was merited; substantial loss was shown by the Respondent's lack of known assets or income, there was no unreasonable delay, and the Applicant undertook to furnish security.

Reasoning

The court applied the settled principles from Stephen Wanjohi v Central Glass Industries Ltd and Vishram Ravji Halai v Thornton & Turpin: sufficient cause, substantial loss, no unreasonable delay and security. The Applicant demonstrated the Respondent had no known assets or income to refund the decretal sum of Kshs. 819,989.00 if the appeal succeeded, and the Respondent adduced no evidence to rebut this. The application filed a day short of a month after judgment was not unreasonably delayed, and the Applicant undertook to deposit security, which the court operationalised through conditional orders.

p. 2
02

Whether granting stay would prejudice the Respondent

Holding

No undesirable or absurd results would flow from the stay, and the Respondent was cushioned by conditional partial release of the decretal sum.

Reasoning

The court weighed the prejudice to the Respondent in delaying realization of the fruits of his judgment against the Applicant's risk of substantial loss. Balancing these, the court crafted conditional orders: partial release of Kshs. 300,000 to the Respondent and deposit of the balance in a joint interest-earning account, mirroring the compromise the Respondent himself had proposed, with the stay lapsing on default.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must establish sufficient cause, substantial loss, absence of unreasonable delay and offer security for due performance of the decree
  • A delay of just under a month in filing a stay application does not amount to unreasonable delay

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered on 23rd September, 2021 in KISUMU CELRC NO. 223 OF 2019 - Tom Omunabi Omukuba v Protective Society Limited pending the hearing and determination of the appeal
  2. 2.The Applicant to release Kshs. 300,000 to the Respondent within 30 days of the ruling
  3. 3.The balance of the decretal sum to be deposited in a joint interest-earning account in the names of Counsel for both parties within 45 days of the ruling
  4. 4.In default of the conditions, the stay orders shall lapse and the Respondent shall be at liberty to execute

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (4)

  • Kenya Power & Lighting Co. Ltd V. Esther Wokabi
    (2014) eKLR
  • Board of Trustees National Social Security Fund v Caroline Wanjiku Karori
    Nairobi Court of Appeal Nyeri Civil Application No. 23 of 2020 (202) eKLR
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nbi HCCC No. 6726 of 1991
  • Vishram Ravji Halai V. Thornton & Turpin
    Civil Application No. 15 of 1990 (1990) KLR 365
On appeal from
Employment and Labour Relations Court
KISUMU CELRC NO. 223 OF 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Protective Custody Limited v Tom Omunabi Omukuba [2022] KEELRC 689 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from KISUMU CELRC NO. 223 OF 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/689/eng@2022-02-24

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