Karanja v Maxland Restaurant, Bar & Lounge (Cause 866 of 2016) [2023] KEELRC 1742 (KLR)

Employment and Labour Relations Court

11 July 2023

JGJacob Gakeri

2,690 words in judgment

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AI-assisted case brief

·~11 min to read original · ~4 min brief

The bottom line

A Kenyan employment court refused to pause execution of a judgment because the company showed no real loss if the money was paid out first.

What this practically means

Executive summary

This was a Notice of Motion dated April 4, 2023 in which the applicant sought a stay of execution of a judgment delivered on September 24, 2020 (incorrectly stated as June 8, 2021) and all consequential orders, pending an intended appeal against a Ruling of March 14, 2023 that had dismissed the applicant's application for review. The applicant, through Anthony Njoroge Gachiri, argued it learnt of the suit only when served with warrants of attachment via WhatsApp, that its appeal was arguable, and that it stood to suffer monetary prejudice; it offered to deposit the decretal sum in court. The Claimant/Decree-holder opposed, contending the decree of Kshs 225,846/= had been or could be satisfied, that he was employed as a Chef earning Kshs 50,000/= gross and could repay any decretal sum, and that the application was a delaying tactic. The court framed a single issue: whether the applicant demonstrated that a stay pending appeal was warranted. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, the court held that substantial loss is the cornerstone consideration. Although the application was filed without undue delay and security was offered, the applicant made no allegation that the decretal sum would be irrecoverable, did not controvert the Claimant's evidence of ability to repay, and wrongly premised its case on the arguability of the appeal, a Rule 5(2)(b) Court of Appeal consideration. The Notice of Motion was dismissed with costs.

Key legal issues

Whether the applicant satisfied the threshold for stay of execution under Order 42 Rule 6(2)

Holding

No - substantial loss, the cornerstone requirement, was not demonstrated even though no undue delay and security were not in issue

Reasoning

The applicant only asserted generic 'prejudice and harm of monetary value' and made no allegation that the decretal sum would be irrecoverable from the Claimant, who deponed he was employed as a Chef and capable of refunding it. The applicant's submissions did not controvert that evidence or address substantial loss. Arguability of the intended appeal is not a ground under Order 42 Rule 6(2).

p. 5

Whether arguability of the intended appeal and serious triable issues justify a stay

Holding

No - those are Rule 5(2)(b) Court of Appeal considerations, not applicable in this court under Order 42 Rule 6(2)

Reasoning

The court noted the applicant 'puzzlingly' anchored its case on the arguability of the intended appeal, which is not a consideration for this court on a stay application; the correct test is substantial loss, no undue delay and security.

p. 6

Legal principles established

Substantial loss is the cornerstone consideration in an application for stay of execution pending appeal
An application for stay of execution pending appeal must satisfy ALL the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Court orders

1.The Notice of Motion dated April 4, 2023 is dismissed with costs

Authorities

Legislation

Civil Procedure Rules, 2010Order 42 Rule 6(2)
Court of Appeal Rules, 2010Rule 5(2)(b)
Civil Procedure Act (Chapter 21)Section 1B
Constitution of Kenya, 2010Articles 159(2)(d) and 48
Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (7)

Butt V Rent Restriction Tribunal
(1982) KLR 417
West Kenya Co Ltd V Luther Angatia
(2018) eKLR
Equity Bank Ltd V Taiga Adams Company Ltd
(2006) eKLR
Masisi Mwita V Damaris Wanjiku Njeri
(2016) eKLR
James Wangalwa & another V Agnes Naliaka Cheseto
(2012) eKLR
Kenya Shell Ltd V Kibiru & another
(1968) KLR 410
Jessikay Enterprises Ltd V George Kahoto Muiruri
(2022) eKLR

Jurisdiction invoked: Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Karanja v Maxland Restaurant, Bar & Lounge (Cause 866 of 2016) [2023] KEELRC 1742 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1742/eng@2023-07-11

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