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ELRCDismissed408 of 2020 (NRB)· [2023] KEELRC 2154 (KLR)

Kenya Chemicals Workers Union v Roto Moulders Limited (Cause 408 of 2020) [2023] KEELRC 2154 (KLR)

Employment and Labour Relations Court
21 September 2023
MOMaureen Onyango
1,235 words in judgment
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The bottom line

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A Kenyan court refused to halt execution of a judgment because the applicant never actually filed an appeal, showing stays require a live appeal.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Maureen Onyango J deals with two applications by the Judgment Debtor, who was the Respondent in the underlying suit. The first, dated 28th July 2022, sought a further stay of execution of the judgment of 14th July 2022 pending hearing of the application and of an intended appeal. Interim stay was granted but discharged on 20th September 2022 when the Applicant failed to attend the hearing, the court finding the matter had been listed in an addendum cause list before Court No. 1. The second application, dated 7th October 2022, sought reinstatement of the discharged interim orders. The Decree Holder, Peter Ouko Onyango, opposed both applications, deposing that no memorandum of appeal had in fact been filed and that a successful litigant is entitled to the fruits of judgment. In submissions the Applicant relied on RWW v EKW, Nicholas Stephen Okaka v Alfred Waga Wesonga and Chase International Investment Corporation v Laxman Keshra, arguing substantial loss, no delay, and a set-off of severance payments against the award. The court held that the second application was spent following subsequent stay orders, and dismissed the first application: although it was filed without delay and security was offered, the Applicant failed to demonstrate that a memorandum of appeal had been filed within the 60-day period, and a stay pending appeal presupposes a filed appeal or a subsisting right of appeal. The stay application was accordingly declined.

Key legal issues

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01

Whether the Applicant satisfied the Order 42 Rule 6(2) conditions for stay pending appeal

Holding

The application failed because no memorandum of appeal had been filed and the time for filing had lapsed

Reasoning

The court accepted that the application was filed without unreasonable delay and that the Applicant offered security. However, the Applicant failed to prove that a memorandum of appeal was filed within 60 days, an issue raised in the replying affidavit. Stay presupposes a filed appeal or an unexpired right of appeal; where the appeal time has lapsed and no appeal is filed, a stay serves no purpose.

p. 3

Legal principles established

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  • Stay of execution pending appeal can only be granted where there is proof that an appeal has been filed within the prescribed period or leave to file out of time has been granted

Court orders

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  1. 1.The application dated 7th October, 2022 declared spent following grant of stay orders on 8th November 2022 as extended on 28th November 2022
  2. 2.The application dated 28th July, 2022 for stay of execution pending appeal dismissed for failure to demonstrate that an appeal has been filed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 and Order 42 Rule 6(2)

Cases cited (3)

  • RWW –v- EKW
    [2019] eKLR
  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR
  • Chase International Investment corporation –v- Laxman Keshra & 3 others
    Civil Appeal No. 8 of 1978; [1978] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Kenya Chemicals Workers Union v Roto Moulders Limited (Cause 408 of 2020) [2023] KEELRC 2154 (KLR)", Case Analysis (2023). 408 of 2020 (NRB). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2154/eng@2023-09-21

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