Kegoye v Kaimosi Tea Estate Limited (Employment and Labour Relations Cause 31 of 2021) [2023] KEELRC 403 (KLR)
The bottom line
#A Kenyan court paused execution of a KES 290,654 award because the winning employee may be unable to refund the money if the company's appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established substantial loss and absence of unreasonable delay under Order 42 rule 6(2)(a) of the Civil Procedure Rules
The court found substantial loss established: the applicant specifically pleaded that the claimant had no known source of income or financial ability to refund the decretal sum; the burden then shifted to the respondent, who was evasive in reply; the applicant proved on balance of probabilities inability to refund, and the application filed on 21st November 2022 following judgment of 27th October 2022 was made without unreasonable delay.
The court held that both parties' authorities agreed that the basis of stay of a money decree is the respondent's incapacity to refund. Upon the applicant pleading with specificity the respondent's lack of income, the evidential burden shifted to the respondent, who relied on argument rather than demonstrating her means. The applicant thus discharged the burden on balance of probabilities, and the application made about three weeks after judgment was not delayed.
Whether the applicant met the second limb of Order 42 rule 6(2) requiring security for due performance of the decree
The applicant satisfied the second limb by expressing readiness and willingness to furnish such security as the court may order; the court applied the principle that a good-faith offer or proposal of security suffices at that stage.
Relying on Exclusive Mines Limited & Another v Ministry of Mining & 2 Others, which the court expressly upheld as good law, the court held that an applicant for stay should as a sign of good faith offer or propose security for performance of the decree. The supporting affidavit of Sospeter Angira para 13 stated the applicant was ready and willing to provide security as the court might determine.
Whether the arguability of the intended appeal is a relevant consideration in a stay-of-execution application before the trial court
No. The court held that whether the appeal is arguable is irrelevant to an application for stay of execution before the trial court, since considering it would amount to re-opening the hearing.
Although the applicant had submitted on the arguability of its intended appeal, the court found those submissions irrelevant in a stay application under Order 42 rule 6 in the court that delivered the judgment. Arguability is a matter for the appellate court under Rule 5(2)(b) of the Court of Appeal Rules, not the trial court. The court accordingly excluded that consideration from its decision.
Whether sufficient cause exists to stay execution of the money decree pending the intended appeal
Yes. The applicant proved likely substantial loss, acted without unreasonable delay, and was ready to give security; the discretion was therefore exercised to grant stay on condition that the decretal amount of Kes 290,654.40 be deposited in court within 30 days, failing which the stay lapses automatically.
Applying Butt v Rent Restriction Tribunal, the court held the discretion on stay must be exercised so as not to prevent an appeal, and a stay should be granted where no overwhelming hindrance exists so the appeal is not rendered nugatory. Balancing the applicant's proved inability of the respondent to refund against her right to enjoy the fruits of judgment, the court granted a conditional stay securing the decree in the interim.
Legal principles established
#- Once an applicant specifically pleads that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what resources he or she has, since that is a matter peculiarly within the respondent's knowledge.
- Substantial loss is the foundation for stay of a money decree; where the applicant shows the respondent has no means of refund, substantial loss is established.
- A stay pending appeal should be granted so that the appeal is not rendered nugatory, unless there is an overwhelming hindrance.
- A party seeking stay pending appeal should as a sign of good faith offer or propose security for the performance of the decree.
Court orders
#- 1.An order of stay of execution of the Judgment and/or Decree dated 27th October 2022 in Bungoma ELRC Claim No. 31 of 2021 pending the filing, hearing and determination of the intended appeal to the Court of Appeal
- 2.Condition that the entire decretal amount of Kenya Shillings Two Hundred and Ninety Thousand, Six Hundred and Fifty Four and Forty cents (Kes 290,654.40) be 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) Employment and Labour Relations Court (Procedure) Rules 2016, Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kegoye v Kaimosi Tea Estate Limited (Employment and Labour Relations Cause 31 of 2021) [2023] KEELRC 403 (KLR)", Case Analysis (2023). Notice of Motion dated 18th November 2022 in Bungoma ELRC Claim No. 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/403/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.