Khaemba v Transport Workers Union & another (Cause 1188 of 2015) [2023] KEELRC 2144 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union official's bid to pause judgment enforcement because he showed no loss, filed late, and refused to offer security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant would suffer substantial loss if stay is not granted
- 2.Whether the application for stay was made without unreasonable delay
- 3.Whether the Claimant has offered security for the due performance of the decree
Key legal issues
#Whether the Claimant demonstrated substantial loss
The Claimant failed to illustrate the loss he would incur if stay was not granted
The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the decision in Joseph Odide Walome v David Mbadi Akello, holding that it is not enough to merely assert that loss will be suffered; the applicant must demonstrate the specific substantial loss. The Claimant did not illustrate any loss he would incur, so the first condition for stay failed.
Whether the application was made without unreasonable delay
The application was filed past the timelines and the delay was unexplained
The ruling was delivered on 26th January, 2023, giving the Claimant 30 days to pay costs. The Claimant waited for the 30 days to lapse before applying for stay on 27th March, 2023, roughly two months after the ruling. His notice of appeal (16th February, 2023) was also outside the 14 days required, and he did not sufficiently explain the delay, so the second condition failed.
Whether security for due performance was given
Stay could not be granted where the applicant was unwilling to deposit security
The Claimant sought to be excused from depositing security on the ground that he was jobless. The Respondents disputed this, averring that he is the General Secretary of the Kenya National Union of Breakdown, Recovery, Commuters and Freight Agency Workers, which assertion the Claimant did not rebut. An unwilling applicant cannot be granted stay.
Legal principles established
#- An applicant for stay must show substantial loss, move the court without unreasonable delay, and furnish security; the onus of proving substantial loss rests on the applicant
Court orders
#- 1.The Claimant's application dated 17th March, 2023 seeking stay of execution is dismissed
- 2.Costs of the application to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Application for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the ruling delivered on 26th January, 2023 pending the application and appeal
The Claimant did not demonstrate substantial loss, applied after inordinate delay, and was unwilling to deposit security; the application was an abuse of court process
Costs
The application was dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application is therefore dismissed with costs.
It is so ordered.
The onus of proving that substantial loss would occur unless stay is granted rests upon and must be discharged accordingly by the applicant.
the Application seeking to stay the Execution is only made to frustrate the Respondents from enjoying the fruits of the judgment hence an abuse of the court process.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khaemba v Transport Workers Union & another (Cause 1188 of 2015) [2023] KEELRC 2144 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2144/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.