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ELRCDismissedKisumu ELRC Appeal No. 037 of 2021 (application dated 9th November, 2021)· [2022] KEELRC 848 (KLR)

Roy Parcel Services Limited v Paul Onyango Abiero [2022] KEELRC 848 (KLR)

Employment and Labour Relations Court
10 February 2022
CBChristine N. Baari
708 words in judgment
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The bottom line

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A Kenyan court refused to pause enforcement of a judgment because the company appealing never showed it would suffer real loss or offer security.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu on a Notice of Motion dated 9th November 2021 by Roy Parcels Services Limited, the appellant in an appeal against a judgment obtained by Paul Onyango Abiero. The appellant sought a stay of execution of the decree pending the hearing and determination of Kisumu ELRC Appeal No. 037 of 2021, with costs. She averred that the respondent had obtained an attachment warrant and proclaimed her properties, that she would suffer irreparable loss since the decretal amount was colossal and the respondent would be unable to repay it, and that the appeal had high chances of success. The respondent opposed the application through grounds of opposition, describing it as misconceived and vexatious, and submitted that as a jobless citizen he would suffer great prejudice if the decretal sum, costs and interest were not released to him. Justice Christine N. Baari applied Order 42 Rule 6 of the Civil Procedure Rules and the criteria in Stephen Wanjohi v Central Glass Industries Ltd: sufficient cause, substantial loss, no unreasonable delay and security for due performance. The court found the appeal premised on evidence yet to be introduced, noted unexplained intentions to recall the respondent for cross-examination and call new witnesses, observed that the appellant had not clarified whether the appeal targeted the judgment of 10th May 2021 or the ruling of 8th September 2021 - a fishing expedition - and noted that no security was offered, a condition precedent. The application was dismissed, interim orders lifted, and costs awarded to the appellant/applicant's opponent.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6 were satisfied

Holding

They were not; the application was dismissed and interim stay orders lifted

Reasoning

The court applied the Stephen Wanjohi criteria. The appeal was premised on evidence yet to be introduced, with no orders sought to introduce it; the appellant wanted to recall the respondent for cross-examination and call new witnesses without justification; the appeal's target (judgment of 10th May 2021 or ruling of 8th September 2021) was unclear, amounting to a fishing expedition; and no security was offered, which is a condition precedent. Staying execution would keep the decree holder from the fruits of his judgment.

p. 2

Legal principles established

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  • For a stay of execution pending appeal the applicant must show sufficient cause, substantial loss, no unreasonable delay and offer security for due performance of the decree
  • An applicant for stay bears the burden of demonstrating that the appeal is arguable and must indicate willingness to deposit security, which is a condition precedent

Court orders

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  1. 1.The application dated 9th November, 2021 is dismissed
  2. 2.The interim orders earlier granted are lifted
  3. 3.The Appellant/Applicant shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (1)

  • Stephen Wanjohi v Central Glass Industries Ltd
    Nbi HCCC No. 6726 of 1991
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, "Roy Parcel Services Limited v Paul Onyango Abiero [2022] KEELRC 848 (KLR)", Case Analysis (2022). Kisumu ELRC Appeal No. 037 of 2021 (application dated 9th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/848/eng@2022-02-10

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