Kellen Wangari Gitonga v Judith Majuma Matimbo [2022] KEELRC 759 (KLR)
The bottom line
#The High Court paused collection of a Kshs.407,000 employment award pending appeal, but only if the employer deposits half the money and secures the balance within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution pending appeal satisfies Order 42 Rule 6
Granted on conditions despite unexplained delay of about four months, because substantial loss/nugatory risk was demonstrated and security was offered.
The court found the decretal sum substantial and the respondent's ability to reimburse it if the appeal succeeded unproven, shifting the evidential burden after the applicant expressed reasonable fear of non-recovery. The proclamation showed only domestic items including sheep and goats valued at Kshs.27,000/-. The offer of a bank guarantee was accepted as bona fide security. Though the delay of about four to five months was inordinate and unexplained, the discretionary power was exercised in the applicant's favour since the other Order 42 Rule 6 requirements were met.
Whether the delay in bringing the application was undue
Yes - the delay was inordinate and unexplained, but not fatal to the application.
Judgment was delivered on 6th July 2021 with a 30-day stay; the application was filed in mid-December 2021, some five months later, with demands for payment in August and December 2021 unanswered. The applicant made no attempt to explain the delay and was found to be using the appeal to camouflage inaction. Nevertheless, the court held that because the other requirements of Order 42 Rule 6 were demonstrated and the power is discretionary, the application was merited.
Legal principles established
#- An applicant for stay pending appeal need not know the respondent's resources in detail; once a reasonable fear of inability to repay is expressed, the evidential burden shifts to the respondent.
- Willingness to provide security does not necessarily mean ability to pay; security may take many forms including a bank guarantee or insurance bond.
- Inordinate, unexplained delay in filing a stay application is a serious failing under Order 42 Rule 6, but the court retains discretion to grant stay where the other requirements are demonstrated.
Court orders
#- 1.Prayer no. 3 of the notice of motion granted - stay of execution of the judgment and decree of the Lower Court in Milimani CMELR No. 273 of 2020 pending the hearing and determination of the appeal
- 2.The Appellant/Applicant to deposit half of the decretal sum in a joint interest earning account in the names of the Advocates for both parties within 45 days
- 3.The Appellant/Applicant to provide security for the balance within 45 days
- 4.In default of either condition, the Respondent at liberty to execute the decree
- 5.Costs of the application to be costs in the appeal
- On appeal from
- Milimani Chief Magistrate's Court (Employment and Labour Relations)
- CMELR No. 273 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makau v DIB Bank Kenya Limited (Petition E164 of 2022) [2023] KEELRC 2146 (KLR)[2023] KEELRC 2146 (KLR)21 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Kellen Wangari Gitonga v Judith Majuma Matimbo [2022] KEELRC 759 (KLR)", Case Analysis (2022). Notice of motion dated 15th December 2021, filed in an appeal from Milimani CMELR No. 273 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/759/eng@2022-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.