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ELRCAllowedNotice of Motion dated December 16, 2022 in Bungoma ELRC Cause No. 29 of 2021· [2023] KEELRC 402 (KLR)

Mideya v Kaimosi Tea Estate Limited (Employment and Labour Relations Cause 29 of 2021) [2023] KEELRC 402 (KLR)

Employment and Labour Relations Court
16 February 2023
3,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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Following a judgment of Justice J. W. Keli delivered on 24 November 2022 in Bungoma ELRC Cause No. 29 of 2021 (Sharon Mideya v Kaimosi Tea Estate Limited), Kaimosi Tea Estate Limited filed a Notice of Motion dated 16 December 2022 seeking stay of execution of that judgment pending an intended appeal to the Court of Appeal. Interim stay had been granted by Justice Radido at Kisumu on 20 December 2022 on condition that the applicant deposit the decretal sum of Kshs. 221,147/- in court. The respondent opposed via a replying affidavit sworn 16 January 2023, and the application was canvassed by written submissions. The applicant invoked sections 95 and 3A of the Civil Procedure Act, rule 41 of the Court of Appeal Rules and Orders 50 and 42 of the Civil Procedure Rules, arguing substantial loss because the claimant had no known source of income and could not refund the decretal sum if the appeal succeeded. The respondent relied on authorities requiring proof of specific and tangible loss. The court held section 95 irrelevant and determined the application under Order 42 rule 6. It found that once the applicant pleaded with specificity that the respondent lacked means, the evidential burden shifted to the respondent, whose denial was evasive; substantial loss was thus proved on a balance of probabilities, and there was no unreasonable delay. The court verified from the court file that the full decretal sum of KES 221,147/- had been deposited on 29 December 2022, satisfying the security limb. Applying Butt v Rent Restriction Tribunal, the court granted stay of execution of the judgment and decree of 24 November 2022 pending the filing, hearing and determination of the intended appeal, with costs of the application to the respondent/claimant.

Key legal issues

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01

Whether the applicant established substantial loss and lack of unreasonable delay under Order 42 rule 6(2)(a)

Holding

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.

Reasoning

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.

p. 5
02

Whether the applicant provided security for the due performance of the decree under Order 42 rule 6(2)(b)

Holding

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/-.

Reasoning

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.

p. 6
03

Whether section 95 of the Civil Procedure Act was a proper basis for the application

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the Respondent/Claimant

Authorities

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Legislation

  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 3A
  • Court of Appeal Rules 2010Rule 41
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (12)

  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another (UR), Nairobi Civil Application No. 238 of 2005 (as cited in Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa (2016) eKLR)
    Nairobi Civil Application No. 238 of 2005 (UR)
  • Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa
    (2016) eKLR
  • International Laboratory for Research on Animal Diseases v Kinyua
    (1990) KLR 403
  • James Wangalwa & Another v Agnes Naliak Chesoto
    High Court Misc. Application No. 42 of 2012
  • Machira t/a Machira & Co Advocates v East African Standard No. 2
    (2002) KLR 63
  • Equity Bank Limited v Taiga Adams Company Limited
    (2006) eKLR
  • Kenya Shell Limited v Kibiru
    (1986) 410
  • Mohammed Salim T/A Choice Butchery v Nasserpurial Memon Jamat
    (2013) eKLR
  • M/S Portreiz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Kenya Hotel Properties Limited v Willesden Properties
    Civil Application No. Nai 322 of 2006
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
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

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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, "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.