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ELRCOtherELRC Cause No. 262 of 2019 (Nairobi Chief Magistrate's Court), Notice of Motion dated 17/10/2022· [2023] KEELRC 2287 (KLR)

Apex Vision Limited v Mutiso & 3 others (Employment and Labour Relations Appeal E163 of 2022) [2023] KEELRC 2287 (KLR)

Employment and Labour Relations Court
28 September 2023
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court granted a conditional stay of execution: pay half the award now, secure the balance within 45 days, or face enforcement.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 17 October 2022 by the judgment debtor (through its Technical Manager, Kyalo Muoki Mutuku) seeking stay of execution of the decree in the judgment of Hon. E. Wanjala (Miss) (PM) delivered on 26 August 2022 in Nairobi Chief Magistrate's Court, ELRC Cause No. 262 of 2019, pending an intended appeal. The applicant argued the appeal was arguable with high chances of success and would be rendered nugatory because it had no knowledge of the respondents' assets or residences. Caroline Mutiso, the 1st respondent, opposed, contending the applicant had not met the Order 42 rule 6(1) and (2) threshold, that execution had not commenced, that the applicant was employing delaying tactics, and that as a foreign-owned company that had closed business, the respondents would suffer substantial loss if the fruits of judgment could not be realised. She proposed half the decretal sum be paid and the balance deposited in a joint account. The court applied Suleiman v Amboseli Resort Ltd and James Wangalwa v Agnes Naliaka Cheseto on substantial loss and the fruits of judgment, and held the applicant had not demonstrated substantial loss. Nonetheless, to balance the scales, the court granted conditional stay: half the decretal sum to be paid to each respondent and the balance deposited in a joint interest-earning account of the parties' advocates within 45 days, failing which the stay lapses and execution follows.

Key legal issues

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01

Whether the applicant demonstrated substantial loss for stay of execution pending appeal

Holding

The applicant failed to demonstrate substantial loss; the respondents faced greater risk of losing the fruits of their judgment

Reasoning

The court found the applicant did not rebut the respondents' deposition that execution had not commenced, and that the applicant company was foreign-owned and had closed business, meaning delay in executing the decree would cause the respondents substantial loss. The court weighed the competing interests and found the stay threshold unmet on the substantial-loss limb.

p. 3
02

Whether the court could grant conditional stay to balance the parties' interests

Holding

Yes - the court exercised its discretion to grant conditional stay requiring payment of half the decretal sum and deposit of the balance within 45 days

Reasoning

Although the strict threshold was not met, the court balanced the scales of justice by granting conditional stay: half the decretal sum to be paid to the respondents and the balance deposited in a joint interest-earning account of the parties' advocates within 45 days, failing which stay lapses and execution follows.

p. 3

Legal principles established

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  • A successful party is prima facie entitled to the fruits of its judgment, and stay must balance rendering an appeal nugatory against impeding that entitlement
  • The fact that execution has commenced or is imminent does not by itself amount to substantial loss under Order 42 rule 6

Court orders

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  1. 1.Stay of execution of the Decree/Judgment of Hon. E. Wanjala (Miss) delivered on 26/8/2022 is granted on condition that the applicant pays half of the decretal sum to each of the respondents
  2. 2.The applicant shall deposit the balance of the decretal sum in a joint interest earning account held in the names of the advocates for the parties within forty five (45) days of the Ruling, failing which the order for stay shall lapse and execution to follow

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, rules 6(1) and (2)

Cases cited (5)

  • Michael Ntouthi Mitheu -vs- Abraham Kivondo Musau
    [2021] eKLR
  • Suleiman –vs- Amboseli Resort Limited
    [2004] 2 KLR 589
  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    Miscellaneous Application No. 42 of 2011 [2012] eKLR
  • Judicial Commission of Inquiry into the Goldenberg Affair & 30 Others -vs- Kilach
    [2003] KLR
  • Dennis Mogambi Mang'are -vs- Attorney General and 3 Others
    Civil Application No. NAI 265 of 2011 [UR 175/2011]
On appeal from
Nairobi Chief Magistrate's Court (ELRC)
ELRC Cause No. 262 of 2019
Jurisdiction invoked
Order 42, rules 6(1) and (2) of the Civil Procedure Rules - application for 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, "Apex Vision Limited v Mutiso & 3 others (Employment and Labour Relations Appeal E163 of 2022) [2023] KEELRC 2287 (KLR)", Case Analysis (2023). ELRC Cause No. 262 of 2019 (Nairobi Chief Magistrate's Court), Notice of Motion dated 17/10/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2287/eng@2023-09-28

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