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ELRCPartially AllowedEmployment and Labour Relations Court Appeal arising from Winam Law Courts ELRC Case No E010/2022· [2023] KEELRC 1906 (KLR)

Lavington Security Guards Limited v Orege (Appeal E018 of 2023) [2023] KEELRC 1906 (KLR)

Employment and Labour Relations Court of Kenya
27 July 2023
1,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu (C. N. Baari, J) on the Appellant/Applicant's Motion dated April 11, 2023 seeking stay of execution of the judgment of Hon Robert Mobisa Oanda delivered on March 16, 2023 at Winam Law Courts in ELRC Case No E010/2022, pending appeal. The application was brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 159(2) of the Constitution. The Applicant, through the affidavit of Roy Kiprotich, argued that the appeal had high chances of success and that it would suffer substantial and irreparable loss, rendering the appeal nugatory, if stay was not granted. The Respondent opposed, contending the application was an afterthought and an abuse of process, that it would deny him the fruits of his judgment, and that the Applicant had not proved substantial loss or the nugatory risk. The court set out the conditions in Order 42 Rule 6(1) and (2): sufficient cause, substantial loss, no unreasonable delay, and security. Relying on Wilson v Church (No 2), Stephen Wanjohi v Central Glass Industries Ltd, and Century Oil Trading Company Ltd v Kenya Shell Limited, the court found the decretal sum of Kshs 399,742.36 might not be refundable if the appeal succeeded, that one month's delay was not inordinate, and that security had been deposited as directed. Stay of execution was granted pending the appeal, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the Applicant established substantial loss

Holding

The Applicant established substantial loss because the Respondent did not demonstrate ability to refund the decretal sum of Kshs 399,742.36 if the appeal succeeded

Reasoning

The court considered the decretal sum and whether it would occasion substantial loss. It noted that the Respondent, the successful litigant, had not demonstrated his ability to refund the decretal sum should the appeal succeed, which in the court's opinion may render the appeal nugatory. The court relied on Century Oil Trading Company Ltd v Kenya Shell Limited on balancing the interests of the applicant preserving the status quo against the respondent enjoying the fruits of judgment.

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02

Whether the application was made without unreasonable delay

Holding

There was no inordinate delay; the application was filed about a month after the judgment

Reasoning

The judgment was delivered on March 16, 2023 and the motion was filed on April 13, 2023, approximately one month later. The court held that one month was not inordinate delay for purposes of Order 42 Rule 6(2).

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03

Whether security for due performance of the decree had been furnished

Holding

The Applicant had complied with earlier orders by depositing security in court as directed

Reasoning

The court found it undisputed that the Applicant had adhered to earlier court orders on security by depositing the security in court as directed, satisfying the third condition under Order 42 Rule 6(2).

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Legal principles established

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  • The general rule is that a stay of execution ought to be granted so that a successful appeal is not rendered nugatory
  • The conditions for stay under Order 42 Rule 6 are sufficient cause, substantial loss, no unreasonable delay, and security for due performance of the decree
  • A successful litigant is entitled to the fruits of judgment unless exceptional circumstances warrant stay

Court orders

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  1. 1.An order for stay of execution of the judgment delivered on March 16, 2023 pending hearing and determination of the appeal
  2. 2.The costs of the application shall abide the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 159(2)(a), (b) and (c)

Cases cited (3)

  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nbi HCCC No 6726 of 1991
  • Century Oil Trading Company Ltd vs Kenya Shell Limited
    Nairobi (Milimani) HCMCA No 1561 of 2007
On appeal from
Winam Law Courts (Magistrates' Court)
Employment and Labour Relations Court Case No E010/2022
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(a), (b) and (c) of the Constitution

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, "Lavington Security Guards Limited v Orege (Appeal E018 of 2023) [2023] KEELRC 1906 (KLR)", Case Analysis (2023). Employment and Labour Relations Court Appeal arising from Winam Law Courts ELRC Case No E010/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1906/eng@2023-07-27

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