Benisa Limited v John Ngotho Maina [2022] KEELRC 725 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
Yes - reasonable apprehension that the decretal sum would be irrecoverable was established on a balance of probabilities; the Respondent did not discharge the shifted evidential burden
The grounds of opposition made no reference to the Respondent's sources of income, assets or capacity to repay. Applying National Industrial Credit Bank v Wasike, once the Applicant expressed reasonable fear of non-recovery, the evidential burden shifted to the Respondent, who filed only deficient grounds of opposition and no evidence of the claim that the appeal was hopeless.
Whether the Applicant was guilty of unreasonable delay
No - 17 days of inaction was not unreasonable in the circumstances
The Notice of Appeal was filed within time, the memorandum of appeal on 6th December 2021, and the application on 23rd December 2021. Although not filed with haste, the 17-day interval was not characterised as unreasonable delay.
Security for due performance
The Applicant's offer of security indicated good faith; the court imposed deposit of the decretal sum in a joint interest-earning account as its condition
Relying on Focin Motorcycle and Patrick Kanaka Munyao, the court held the offer to furnish security satisfied that ground, with the court retaining discretion on the form of security. It rejected splitting the sum, ordering deposit of the whole decretal amount within 45 days, failing which the stay lapses.
Legal principles established
#- Once an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to demonstrate his resources
- An offer to provide security is a mark of good faith and satisfies that ground of stay, with the court retaining discretion over the kind of security
- A short period of inaction (17 days) between filing the memorandum of appeal and the stay application does not amount to unreasonable delay
Court orders
#- 1.Stay of execution of the judgment of 22nd November 2021 in Ruiru SPM ELRC No. 36 of 2020 granted in terms of prayer No. 3, conditional on the Applicant depositing the decretal sum in a joint interest-earning account in the names of Advocates for both parties within 45 days
- 2.If the deposit condition is not met within 45 days, the stay stands vacated and the Respondent may execute
- 3.Costs of the application to be in the appeal
- On appeal from
- Ruiru Senior Principal Magistrate's Court (ELRC)
- SPM ELRC No. 36 of 2020
- Jurisdiction invoked
- Section 12(1) and (3) of the Industrial Court Act 2011 and Rule 16(1) of the Industrial Court Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinyili & 3 others v Nzatu (Environment and Land Appeal E031 of 2024) [2025] KEELC 3645 (KLR)[2025] KEELC 3645 (KLR)8 May 2025
- Bollore Transport & Logistics Ltd v Kidaha (Appeal E060 of 2022) [2022] KEELRC 1613 (KLR)[2022] KEELRC 1613 (KLR)28 Jul 2022
- Bollore Transport & Logistics Ltd v Kidaha (Appeal E060 of 2022) [2022] KEELRC 1613 (KLR)[2022] KEELRC 1613 (KLR)28 Jul 2022
Cite this brief
#Cite this brief
Caselaw, "Benisa Limited v John Ngotho Maina [2022] KEELRC 725 (KLR)", Case Analysis (2022). Not stated in the extract (arising from appeal against judgment in Ruiru SPM ELRC No. 36 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/725/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.