Saina v Kaimosi Tea Estate Limited (Cause 30 of 2021) [2023] KEELRC 400 (KLR)
The bottom line
#A Kenyan employment court paused collection of an award against Kaimosi Tea Estates, but only after the company deposited the full amount in court.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss and unreasonable delay under Order 42 rule 6(2)(a)
The applicant proved on a balance of probabilities that substantial loss would result because the claimant had no known source of income or financial ability to refund the decretal sum, and the application was filed without unreasonable delay
The applicant specifically pleaded that the claimant had no known source of income. On the authority of National Industrial Credit Bank v Wasike, the evidential burden then shifted to the respondent to disclose her means. The respondent's reply was evasive and did not demonstrate ability to refund. The court therefore found substantial loss established. The judgment having been delivered on October 27, 2022 and the application filed on November 21, 2022, there was no unreasonable delay.
Security for due performance under Order 42 rule 6(2)(b)
The applicant satisfied the second limb by expressing readiness and willingness to furnish security as the court may order
Relying on Exclusive Mines Limited v Ministry of Mining, the court upheld the principle that an applicant for stay should, in good faith, offer or propose security for due performance of the decree. The supporting affidavit of Sospeter Angira stated the applicant's readiness to provide security, satisfying the second limb of Order 42 rule 6(2).
Whether arguability of the intended appeal is relevant to stay before the trial court
Arguability of the appeal is irrelevant in an application for stay of execution in the trial court
The court found that submissions on whether the intended appeal was arguable amounted to an attempt to re-open the hearing. Such a criterion belongs to applications under rule 5(2)(b) of the Court of Appeal Rules before the appellate court, not to an application for stay before the court appealed from, which is governed by Order 42 rule 6 of the Civil Procedure Rules.
Legal principles established
#- Once an applicant pleading specificity states that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he or she has
- An applicant for stay should, as a sign of good faith, offer or propose security for the performance of the decree
- The discretion on stay should be exercised so as not to prevent an appeal; if there is no overwhelming hindrance a stay must be granted so the appeal is not rendered nugatory
Court orders
#- 1.An order of stay of execution of the judgment and/or decree of the court dated October 27, 2022 in Bungoma ELRC Claim No 30 of 2021 Joseph Kipyegon Saina v Kaimosi Tea Estates Limited pending the filing, hearing and determination of the intended appeal to the Court of Appeal
- 2.Conditional upon the entire decretal amount of KES 82,628.85 being deposited in court within 30 days of the ruling, failing which the order of stay shall stand automatically vacated
- 3.Costs of the application to the respondent/claimant
- Jurisdiction invoked
- Sections 3 and 17(1) of the Employment and Labour Relations Court Act, Rule 17(1)(8) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saina v Kaimosi Tea Estate Limited (Cause 30 of 2021) [2023] KEELRC 400 (KLR)", Case Analysis (2023). Bungoma ELRC Claim No 30 of 2021 (Notice of Motion dated November 18, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/400/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.