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ELRCDismissedNot stated in the judgment

Issak v University Of Nairobi (Cause E015 of 2021) [2023] KEELRC 2312 (KLR)

Employment and Labour Relations Court
29 September 2023
ANAbuodha Jorum Nelson
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to pause a judgment debt because paying it is not 'substantial loss' — Kenyan courts expect real hardship evidence, not just an appeal.

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 Nairobi (Abuodha Jorum Nelson J) on a notice of motion dated March 17, 2023 in which the Claimant sought a stay of execution of the judgment and decree delivered by Mbaru J on January 26, 2023, pending the hearing of the application and an intended appeal to the Court of Appeal (Appeal No E015 of 2021). The application was supported by an affidavit of Bernard Njuguna, the Respondent's Registrar, who averred that it was brought without delay and that the applicant was willing to furnish security. The Appellant/Respondent opposed it, contending that it was incompetent and an abuse of process, that no substantial loss had been demonstrated, that no proclamation or attachment had occurred, and that no appeal had actually been filed. The application was disposed of by written submissions. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities on substantial loss, holding that a judgment is a debt whose enforcement cannot of itself constitute substantial loss; the applicant had not shown how paying the pending gratuity would cause substantial loss, no attachment had commenced, and the successful litigant could not be made to wait indefinitely. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution of the judgment of January 26, 2023 was filed without unreasonable delay
  2. 2.Whether the applicant demonstrated that substantial loss would result if stay was not granted
  3. 3.Whether the applicant was ready to furnish security for the due performance of the decree

Key legal issues

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01

Whether the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules were satisfied

Holding

The application failed because substantial loss was not demonstrated; paying the decretal gratuity is not substantial loss and no attachment had commenced, so the Respondent should not be kept out of the fruits of his judgment

Reasoning

The court applied Order 42 Rule 6(2) as explained in Halal v Thornton & Turpin, requiring substantial loss and security. Following James Wangalwa and Kenya Shell v Kibiru, mere execution or threatened execution is not substantial loss. A judgment is a debt; paying it cannot be substantial loss. The applicant also had no appeal on file and was delaying, and the successful litigant must be allowed to enjoy the fruits of judgment.

p. 3

Legal principles established

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  • A judgment of a court of law is a debt and its enforcement per se cannot constitute substantial loss for purposes of a stay of execution under Order 42 Rule 6
  • Execution being levied or about to commence does not by itself amount to substantial loss; the applicant must show other factors that will irreparably negate the essential core of their position

Court orders

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  1. 1.The application dated March 17, 2023 seeking stay of execution is found without merit and is dismissed with costs
  2. 2.Costs of the application awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (inherent jurisdiction of the trial court to grant stay of execution pending appeal)

Relief refused

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Stay of execution of the judgment and decree of January 26, 2023 pending the intended appeal to the Court of Appeal (Appeal No E015 of 2021)

The applicant failed to demonstrate substantial loss; a judgment is a debt and paying it cannot amount to substantial loss, and no proclamation or attachment had commenced

p. 3

Costs

The application is dismissed with costs to the Respondent

Quotable passages

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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 found without merit and is hereby dismissed with costs.
p. 3Final orders - dismissal of the stay application
As observed in the cases cited above, a judgment of a Court of law is a debt and enforcement thereof per se cannot constitute a substantial loss.
p. 3Substantial loss under Order 42 Rule 6
The applicant has not illustrated how paying the Respondent his pending gratuity will amount to a substantial loss yet the proclamation and attachment has not yet commenced.
p. 3Failure to demonstrate substantial loss

Issues in the judgment

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material

The judgment nowhere states the full names of the parties or the case number; only the deponent Bernard Njuguna and the intended Court of Appeal reference (Appeal No E015 of 2021) are identifiable.

minor

The party roles are internally confusing: the stay applicant is described as the 'Respondent' appealing to the Court of Appeal while the opposing party is styled 'Appellant/Respondent'.

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, "Issak v University Of Nairobi (Cause E015 of 2021) [2023] KEELRC 2312 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2312/eng@2023-09-29

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