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ELRCDismissedNot stated in the extract· [2023] KEELRC 3106 (KLR)

Kema Investment Limited v Oricho (Appeal E176 of 2023) [2023] KEELRC 3106 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
23 November 2023
OKOCHARO KEBIRA
1,299 words in judgment
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The bottom line

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The Employment Court refused to pause a Kshs 131,967 judgment because the appellant offered no real evidence the money couldn't be refunded if the appeal succeeded.

What this practically means

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Executive summary

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The Appellant/Applicant moved the court by Notice of Motion dated 18th September 2023 under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules 2010 seeking a stay of execution of the judgment and orders of 25th August 2023 in CMEL No. 210 of 2020 (Milimani), by which the trial court entered judgment against it for Kshs 131,967 plus interest and costs. The Applicant argued the appeal had a high chance of success, would be rendered nugatory without a stay, that the application was made without delay, and offered to deposit security equivalent to the decretal sum in a joint interest-earning account. The Respondent opposed, contending the threshold in Order 42 Rule 6 was not met and, in the alternative, sought an order that the decretal sum be deposited in court within 30 days. Parties relied on their affidavits without filing submissions. The court, per Ocharo Kebira J, held the Respondent's material too sketchy to gauge the arguability of the appeal, and found the decretal sum not substantial and the Applicant's material insufficient to show the Respondent could not refund it. Applying National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that a general fear of non-recovery does not suffice; the evidential burden shifts only if the assertion is backed by sufficient material. The application was dismissed with costs.

Key legal issues

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01

Whether substantial loss was demonstrated to justify stay of execution pending appeal

Holding

The application failed; the Applicant's assertion that the Respondent could not refund the decretal sum was not backed by sufficient material, and the decretal sum was not substantial

Reasoning

The court found the Respondent's material too sketchy to gauge whether the appeal was arguable. On substantial loss, the decretal sum of Kshs 131,967 was held not to be substantial, and the Applicant's material did not persuade the court that the Respondent would be unable to refund the sum if the appeal succeeded. The court adopted the National Industrial Credit Bank principle that a general fear of non-recovery is insufficient without supporting material.

p. 3

Legal principles established

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  • It is not enough for a stay applicant to assert generally that the decretal sum would not be recovered; the evidential burden shifts to the Respondent only if the assertion is backed by sufficient material

Court orders

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  1. 1.The application dated 18th September 2023 is dismissed with costs
  2. 2.It is so ordered
On appeal from
Milimani Chief Magistrate's Court (employment and labour relations)
CMEL No. 210 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010 on appeal from the trial court

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, "Kema Investment Limited v Oricho (Appeal E176 of 2023) [2023] KEELRC 3106 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3106/eng@2023-11-23

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