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ELRCPartially AllowedNairobi CMEL No. 1377 of 2019 (appeal)· [2022] KEELRC 868 (KLR)

Suresh Raniga v Hellen Edel Mbenge Munyao [2022] KEELRC 868 (KLR)

Employment and Labour Relations Court
8 February 2022
1,138 words in judgment
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The bottom line

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A Kenyan employment court paused execution of a judgment on appeal, but only if the appellants deposit half the awarded money within 30 days.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango, J on 8 February 2022, determined the Appellants' application for stay of execution pending appeal against the decision of Hon. D. O. Mbeja, Principal Magistrate, in Nairobi CMEL No. 1377 of 2019. The court set out the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules: absence of unreasonable delay, demonstration of substantial loss, and provision of security for due performance of the decree. It applied the principles in Stanley Karanja Wainaina v Ridon Anyangu Mutubwa and National Industrial Credit Bank Ltd v Aquinas Francis Wasike, holding that once an applicant alleges a respondent cannot refund the decretal sum, the evidential burden shifts to the respondent. The Respondent relied on several authorities, including Kenya Shell v Kibiru and Stephen Wanjohi v Central Glass Industries, but the court noted most concerned appeals to the Court of Appeal governed by different rules, and that the applicable rules for appeals from magistrates' courts were those in Order 42 Rule 6(2). Finding the appeal not frivolous, with triable issues, and the Respondent having given no indication of her ability to refund the decretal sum, the court allowed the application on condition that the Appellants deposit 50% of the decretal sum in a joint interest-earning fixed deposit account in the joint names of counsel within 30 days. Costs of the application were to be in the appeal.

Key legal issues

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01

Conditions for grant of stay of execution pending appeal

Holding

Stay may be granted where the application is made without undue delay, substantial loss is demonstrated, and security for due performance of the decree is given; the court found the appeal not frivolous and the Respondent unable to demonstrate ability to refund

Reasoning

The court restated the settled conditions in Order 42 Rule 6(2). It distinguished authorities cited by the Respondent as relating to appeals to the Court of Appeal governed by different rules. On the material before it, the appeal raised triable issues, and the Respondent gave no indication of her ability to refund the decretal sum, satisfying the substantial loss condition.

p. 2
02

Burden of proving inability to refund the decretal sum

Holding

The evidential burden shifts to the respondent to demonstrate his or her resources once the applicant alleges the appeal would be rendered nugatory if execution proceeds

Reasoning

Relying on National Industrial Credit Bank Limited v Aquinas Francis Wasike, the court held it is unreasonable to expect an applicant to know a respondent's resources in detail. The Respondent's replying affidavit gave no indication of her ability to refund any decretal sum released to her, so the Appellants' substantial loss claim stood.

p. 2

Legal principles established

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  • For appeals from magistrates' courts, the applicable stay conditions under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • Once an applicant expresses that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what resources he has

Court orders

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  1. 1.Application for stay of execution allowed on condition that the Appellants deposit 50% of the decretal sum in a joint interest-earning fixed deposit account in the joint names of Counsel for the Appellant and Counsel for the Respondent within 30 days, pending hearing and determination of the appeal
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (10)

  • Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa
    [2016] eKLR
  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another
    Nairobi Civil Application No. 238 of 2005 (UR)
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • George Oraro v Kenya Television Network
    Nairobi High Court Civil Case Number 151 of 1992
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nairobi HCCC No. 6726 of 1991
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another
    [2001] eKLR
  • George Omondi Odek v Jagdish Kotecha & another
    [2000] eKLR
  • Union Insurance Company of Kenya Ltd v Ramzan Abdul Dhanji
    Civil Application Number 179 of 1998
  • Council of Legal Education and another v Rita Biwott
    Civil Application Number 238 of 1994; [1994] LLR 4859
  • FK Kiongo v VP Mukubwa and another
    Civil Application Number Nairobi 63 of 1988
On appeal from
Chief Magistrate's Court (Employment and Labour Relations), Nairobi
Nairobi CMEL No. 1377 of 2019
Jurisdiction invoked
Appellate jurisdiction over appeals from the Magistrates' Court, invoking Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Suresh Raniga v Hellen Edel Mbenge Munyao [2022] KEELRC 868 (KLR)", Case Analysis (2022). Nairobi CMEL No. 1377 of 2019 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/868/eng@2022-02-08

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