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ELRCAllowedNot stated in judgment· [2023] KEELRC 734 (KLR)

Odida v Owano (Appeal E039 of 2022) [2023] KEELRC 734 (KLR)

Employment and Labour Relations Court
23 March 2023
1,126 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu on the appellant's notice of motion dated 16th November 2022, brought under Articles 159 and 165(6) of the Constitution and section 65 of the Civil Procedure Act, seeking a stay of execution of the judgment and decree of Hon. Kennedy Cheruiyot delivered on October 11, 2022 in ELRC Cause No. 46 of 2022, pending the hearing and determination of the appellant's appeal. The appellant, Charles Onyango Odida, argued that his appeal had high chances of success and that he would suffer substantial loss because the respondent was a man of straw who might not refund the decretal sum if the appeal succeeded. The respondent opposed the application, arguing it was aimed at delaying enjoyment of the fruits of the judgment, that no security had been offered, and that there had been unexplained delay of one month. Relying on Order 42 rule 6(1) and (2) of the Civil Procedure Rules and established authorities including Stephen Wanjohi v Central Glass Industries Ltd and Century Oil Trading Company Ltd v Kenya Shell Limited, the court held that the appellant had demonstrated sufficient cause, substantial loss (the decretal sum being about Ksh. 450,000 and the respondent not rebutting the claim of inability to refund), and that a one-month delay was not inordinate, the memorandum of appeal having been filed within 30 days. The court held that the failure to confirm readiness to provide security did not disentitle the appellant to the orders. The court granted the stay of execution pending the appeal, with costs of the application to abide the appeal. Judgment delivered on 23rd March 2023 by Christine N. Baari, Judge.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was established because the decretal sum of about Ksh. 450,000 may be irrecoverable if the respondent is a man of straw.

Reasoning

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.

p. 3
02

Unreasonable delay

Holding

A one-month delay in filing the application was not inordinate, and the memorandum of appeal was filed within the 30 days allowed.

Reasoning

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.

p. 3
03

Security for due performance

Holding

Failure to confirm readiness to provide security did not disentitle the appellant to the stay orders sought.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.