Kenya Hotel & Allied Workers Union v Hotel Rastopark (Cause 15 of 2019) [2023] KEELRC 1739 (KLR)
The bottom line
#The Employment Court in Kakamega halted execution of a judgment against Kakamega Gas County Government, but only if the full decretal sum is deposited in court within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules
Stay granted: substantial loss proved on balance of probabilities, no inordinate delay, and applicant willing to furnish security.
The court applied the Order 42 rule 6(2) test of substantial loss, absence of unreasonable delay and security. It held that arguability of the appeal is irrelevant at first instance, accepted the applicant's claim that the decree holder might be unable to refund the decretal sum, found the memorandum of appeal filed two days after judgment, and invoked the overriding objective to preserve the appeal's utility.
Whether failure to attach a draft memorandum of appeal defeats an application for stay
No - arguability of the appeal is not a criterion for the trial court determining stay.
The respondent argued the applicant had not annexed a draft memorandum of appeal to show an arguable appeal. The court held that considering arguability would invite the trial court to sit on appeal over its own decision, so the objection was rejected.
Legal principles established
#- Whether an arguable appeal exists is irrelevant in a trial court's determination of an application for stay pending appeal.
- Execution being in motion does not by itself amount to substantial loss; the applicant must show the execution would render the appeal nugatory.
Court orders
#- 1.Stay of execution of the judgment and decree dated September 22, 2022 granted pending appeal, on conditions
- 2.The applicant shall deposit the entire decretal sum in court within 30 days of the ruling and order, failing which execution to proceed
- 3.Costs of the application to the Claimant
- Jurisdiction invoked
- Sections 1, 1B, 3 and 3A of the Civil Procedure Act; Order 40 rules 1, 2, 3 and Order 42 rules 5 and 6 of the Civil Procedure Rules; Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotel & Allied Workers Union v Hotel Rastopark (Cause 15 of 2019) [2023] KEELRC 1739 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1739/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.