Deloraine Estates Limited v Shikuku (Employment and Labour Relations Appeal E020 of 2022) [2023] KEELRC 1250 (KLR)

The court held that an individual's sources of income are largely private, and once the Applicant challenged the Respondent's means to refund, the burden of proving capacity to refund shifted to the Respondent. The Respondent made no attempt to discharge that burden, wrongly assuming it lay on the Applicant. Failure to demonstrate refund capacity established that substantial loss would result and the appeal would be rendered nugatory if the decretal sum were paid and later had to be recovered.

The court noted the judgment was delivered on August 18, 2022 with a 28-day stay granted by consent, expiring mid-September. The application was filed on September 15, 2022, a memorandum of appeal annexed, and typed proceedings requested. The court found the Applicant acted with necessary dispatch and there was no unreasonable delay.

Under Order 42 Rule 6(2)(b) the applicant must give such security as the court orders for due performance of the decree. The Applicant had repeatedly stated it was ready to abide by any conditions imposed. The court treated this as sufficient cause and security, and structured the stay on a conditional deposit of the decretal sum plus costs of Kshs 625,965/= in a joint interest-earning account within 30 days.

The court framed stay applications as pitting the decree-holder's entitlement to the fruits of a judgment on the merits against the judgment-debtor's risk that execution renders a successful appeal academic. The discretion must be exercised judiciously, not whimsically or capriciously, guided by the interests of justice and the peculiar circumstances of each case, applying the general principle of sufficient cause and the specific ingredients of Order 42 Rule 6.