Odida v Owano (Appeal E039 of 2022) [2023] KEELRC 734 (KLR)
The bottom line
#Kenya's Employment Court in Kisumu paused collection of a Ksh. 450,000 judgment because the winner might not repay it if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Substantial loss was established because the decretal sum of about Ksh. 450,000 may be irrecoverable if the respondent is a man of straw.
The appellant contended that the respondent could not refund the decretal sum should the appeal succeed. The respondent did not rebut this averment or demonstrate ability to repay. The court found the sum of about Ksh. 450,000 substantial given the risk of non-refund, aligning with Century Oil Trading Company Ltd v Kenya Shell Limited.
Unreasonable delay
A one-month delay in filing the application was not inordinate, and the memorandum of appeal was filed within the 30 days allowed.
The application was filed one month after the judgment of October 11, 2022. The court held that a one-month delay was not inordinate and noted that the memorandum of appeal was filed on October 31, 2022, within the 30 days provided by law.
Security for due performance
Failure to confirm readiness to provide security did not disentitle the appellant to the stay orders sought.
The respondent argued the appellant had not indicated willingness to provide security. The court accepted the omission but held, in its discretion, that it did not disqualify the applicant, since stay is an equitable remedy granted at the court's discretion.
Legal principles established
#- An application for stay of execution must satisfy the conditions of sufficient cause, substantial loss, no unreasonable delay and security for due performance of the decree.
- The general rule is that a stay of execution should be granted so that a successful appeal is not rendered nugatory.
- Doubt about the respondent's ability to refund the decretal amount supports a finding of substantial loss.
Court orders
#- 1.Stay of execution of the judgment and resultant decree in ELRC Cause No. 46 of 2022 (delivered on October 11, 2022) pending hearing and determination of the appeal
- 2.Costs of the application to abide the appeal
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 46 of 2022
- Jurisdiction invoked
- Articles 159 and 165(6) of the Constitution and section 65 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odida v Owano (Appeal E039 of 2022) [2023] KEELRC 734 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/734/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.