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ELRCOtherMombasa CMELRC No 463 of 2018 (Application dated April 17, 2023)· [2023] KEELRC 1719 (KLR)

Bollore Transport & Logistics Kenya Limited v Masha & another (Appeal E035 of 2023) [2023] KEELRC 1719 (KLR)

Employment and Labour Relations Court
29 June 2023
MMM. Mbarũ
1,083 words in judgment
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The bottom line

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Kenya's Employment Court granted only a conditional stay of execution: no proof of substantial loss or security means the appellant must deposit half the judgment money within 30 days.

What this practically means

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Executive summary

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This is a ruling on an application dated April 17, 2023 by the appellant, Bollore Transport and Logistics Kenya Limited, seeking stay of execution of a judgment delivered by the trial court on March 23, 2023 in Mombasa CMELRC No 463 of 2018, in which it was ordered to pay service pay and costs to the 1st respondent, Karisa Kalamu Masha. The application was supported by an affidavit of Maurice Lugadiru, senior legal officer. The 1st respondent opposed, arguing no substantial loss was demonstrated, execution had not commenced, and no security was offered; he should enjoy the fruits of his judgment. The 2nd respondent, through Sylvanus Barasa, opposed liability for service pay going back to 1994, contending it was not the employer before June 1, 2016 and that NSSF remittances meant no service pay was payable. The appellant relied on section 17 of the ELRC Act and Rule 32 of the Court Rules, invoking Order 42 rule 6 principles and the Jenny Luesby authority on substantial loss. The court applied Danros (K) Limited, holding substantial loss to be the cornerstone of the jurisdiction and noting that without security no stay can issue. Finding no evidence of substantial loss, the court balanced the right of appeal against the successful litigant's right to enjoy the judgment, and granted a conditional stay: the appellant to deposit 50% of the decretal sum in a joint interest-earning account in the parties' joint names within 30 days, failing which the stay lapses automatically. Delivered at Mombasa on June 29, 2023 by M. Mbarũ, J.

Key legal issues

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01

Requirements for stay of execution pending appeal

Holding

The appellant failed to demonstrate substantial loss; a conditional stay securing the judgment's substratum was granted instead

Reasoning

The court balanced the appellant's statutory right of appeal against the 1st respondent's right to enjoy the fruits of judgment. Citing Danros (K) Limited, substantial loss is the cornerstone of Order 42 rule 6 jurisdiction, and security must be pledged for eventual performance of the decree. Since no evidence of substantial loss was given, only a conditional stay with a 50% deposit was imperative.

p. 2

Legal principles established

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  • An applicant for stay of execution under Order 42 rule 6 must demonstrate substantial loss and offer security for the performance of the decree; otherwise a conditional stay may issue.

Court orders

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  1. 1.Conditional order of stay of execution of the judgment delivered on March 23, 2023 and consequential orders, on condition that the appellant deposits 50% of the decretal sum in a joint interest-earning bank account held in the names of the appellant and the 1st respondent within 30 days
  2. 2.Stay orders to lapse automatically upon failure to make the deposit

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 17
  • Civil Procedure Actgeneral (applied via Rule 32 of the ELRC Court Rules)
  • Employment and Labour Relations Court (Procedure) RulesRule 32
  • Civil Procedure RulesOrder 42 rule 6

Cases cited (2)

  • Jenny Luesby v Standard Group
    [2016] eKLR
  • Danros (K) Limited & another v Murtaza Adaamjee
    [2021] eKLR
On appeal from
Trial court (magistrates' court, employment and labour matters)
Mombasa CMELRC No 463 of 2018
Jurisdiction invoked
Section 17 of the Employment and Labour Relations Court Act, 2011 and Rule 32 of the Court Rules read with Order 42 rule 6 of the Civil Procedure Rules

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, "Bollore Transport & Logistics Kenya Limited v Masha & another (Appeal E035 of 2023) [2023] KEELRC 1719 (KLR)", Case Analysis (2023). Mombasa CMELRC No 463 of 2018 (Application dated April 17, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1719/eng@2023-06-29

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