Mideya v Kaimosi Tea Estate Limited (Employment and Labour Relations Cause 29 of 2021) [2023] KEELRC 402 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established substantial loss and lack of unreasonable delay under Order 42 rule 6(2)(a)
The applicant, by pleading with specificity that the claimant had no known source of income, shifted the evidential burden to the respondent, whose reply was evasive; the court found on a balance of probabilities that the respondent had no financial capacity to refund the decretal amount, and that the application filed on 16 December 2022 after a 24 November 2022 judgment involved no unreasonable delay.
The court appreciated that all authorities agreed the main basis for staying a money decree is the incapacity of the respondent to repay the decretal sum if the appeal succeeds, otherwise the appeal would be an academic exercise. Having pleaded the claimant's lack of means with specificity, the applicant discharged the legal duty, and the claimant's denial without evidence of means was evasive. The claimant offered no proof of resources, so substantial loss was proved on a balance of probabilities.
Whether the applicant provided security for the due performance of the decree under Order 42 rule 6(2)(b)
The applicant complied with the security limb; the court perused the file and found a deposit receipt issued by Bungoma Law Courts on 29 December 2022 for the full decretal sum of KES 221,147/-.
The applicant submitted that pursuant to the interim order of Justice Radido it had deposited the entire decretal amount of KES 221,147.00/-, while the respondent contended the money was not deposited in court. On perusal of the court file the court found a deposit receipt issued by Bungoma Law Courts on 29 December 2022 for that sum, satisfying the second limb of Order 42 rule 6.
Whether section 95 of the Civil Procedure Act was a proper basis for the application
The court found the cited provision on enlargement of time irrelevant to the application, and instead anchored its decision on Order 42 rule 6 of the Civil Procedure Rules.
The application had been brought under sections 95 and 3A of the Civil Procedure Act, rule 41 of the Court of Appeal Rules 2010 and Order 50 Rule 6 of the Civil Procedure Rules. The court quoted section 95, which concerns enlargement of periods fixed by the court, and held it irrelevant to an application for stay of execution pending appeal, identifying Order 42 rule 6 as the relevant provision instead.
Legal principles established
#- Once an applicant for stay pleads that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources they have, as that is a matter peculiarly within the respondent's knowledge.
- Where there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appellate court reverse the judgment.
Court orders
#- 1.An order of stay of execution of the Judgment and/or Decree dated November 24, 2022 in Bungoma ELRC Claim No. 29 of 2021 Sharon Mideya v Kaimosi Tea Estates Limited pending the filing, hearing and determination of the intended appeal to the Court of Appeal
- 2.Costs of the application to the Respondent/Claimant
- Jurisdiction invoked
- Sections 95 and 3A of the Civil Procedure Act, Order 42 rule 6 of the Civil Procedure Rules, rule 41 of the Court of Appeal Rules 2010 and Order 50 Rule 6 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mideya v Kaimosi Tea Estate Limited (Employment and Labour Relations Cause 29 of 2021) [2023] KEELRC 402 (KLR)", Case Analysis (2023). Notice of Motion dated December 16, 2022 in Bungoma ELRC Cause No. 29 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/402/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.