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ELRCDismissedCause No 2203 of 2016· [2023] KEELRC 1101 (KLR)

Chang'awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2023] KEELRC 1101 (KLR)

Employment and Labour Relations Court
8 May 2023
2,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to halt enforcement of an employment award because the hospital could not show it would suffer real loss if the money was paid.

What this practically means

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Executive summary

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This was a Notice of Motion by the Respondent/Applicant (a hospital) seeking a stay of execution of a Ruling delivered on February 16, 2023 by Dr Gakeri J, pending hearing of the application and an intended appeal to the Court of Appeal. The underlying judgment of July 6, 2022 awarded the Claimant Kshs 4,244,913.60 with costs and interest; the parties compromised the uncontested portions during pendency of a review, leaving only the housing allowance component contentious. The Ruling of February 16, 2023 had dismissed the applicant's earlier application for stay of the decree. The Claimant opposed via grounds of opposition, contending inter alia that the Notice of Appeal was lodged in the wrong court contrary to Section 75 of the Court of Appeal Rules, that the court cannot sit on appeal over its own ruling, and that it lacked jurisdiction over matters in the Court of Appeal. The court framed a single issue: whether the application was meritorious. It held that the Ruling of February 16, 2023 made no positive orders capable of being stayed, since it merely dismissed the earlier stay application. Although the applicant acted without delay and offered security (half the judgement sum), it failed to demonstrate substantial loss: the decree had not been extracted and no execution had been threatened. Since Order 42 Rule 6(2) conditions must all be satisfied as the provision is mandatory, the application failed. The court, though vested with jurisdiction under Order 42 Rule 6(1), declined to exercise its discretion, deferring to the Court of Appeal. The Notice of Motion was dismissed with no orders as to costs.

Key legal issues

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01

Stayability of a negative ruling

Holding

A ruling dismissing an application and making no positive orders cannot be stayed

Reasoning

The court found that the Ruling of February 16, 2023 merely dismissed the applicant's earlier Notice of Motion for stay; there were no positive orders capable of staying. Any stay sought was effectively of the July 6, 2022 judgment and decree, whose stay had lapsed and was not extended.

p. 3
02

Substantial loss under Order 42 Rule 6(2)

Holding

Substantial loss was not established as the decree had not been extracted and no execution was threatened

Reasoning

The applicant alleged the claimant was a man of straw but did not prove it. The claimant had not extracted the decree or threatened execution, and no other factors showing irreparable effect on the applicant's essential core were demonstrated.

p. 4
03

Delay and security

Holding

There was no unreasonable delay and the offer of security was sufficient, but this could not cure failure on substantial loss

Reasoning

The application was filed on March 8, 2023 following a ruling of February 16, 2023, so delay was absent. The applicant offered to deposit half the judgement sum, which was a mark of good faith, but all Order 42 Rule 6(2) conditions had to be satisfied individually.

p. 5
04

Deference to the Court of Appeal

Holding

Although the court had jurisdiction under Order 42 Rule 6(1), discretion was properly declined in favour of the Court of Appeal

Reasoning

Since the intended appeal lay to the Court of Appeal, a superior court with a wider spectrum of issues to consider including the Memorandum of Appeal, fairness dictated that the trial court defer rather than exercise its discretion in the applicant's favour.

p. 5

Legal principles established

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  • A ruling that dismisses a notice of motion and makes no positive orders is incapable of being stayed
  • The conditions in Order 42 Rule 6(2) for stay pending appeal must each be satisfied as the provision is mandatory; substantial loss is the foundation of the application
  • Mere execution or likelihood of execution does not of itself amount to substantial loss

Court orders

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  1. 1.The Notice of Motion dated March 6, 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Court of Appeal RulesSection 75
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (6)

  • RWW v EKW
    [2019] eKLR
  • James Wangalwa & another v Agnes Naliaka Chesolo
    [2012] eKLR
  • Kenya Shell Ltd v Benjamin Keruga Kibiru & others
    [1982-85], KAR 1018
  • Pan African Insurance Co Ltd v International Air Transport Association
    HCCC No 86 of [2006]
  • Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates and 2 others
    [2014] eKLR
  • Focin Motorcycle Co Ltd v Ann Wambui Wangui & another
    [2018] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Chang'awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2023] KEELRC 1101 (KLR)", Case Analysis (2023). Cause No 2203 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1101/eng@2023-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.