Wamiri v Agricultural Society of Kenya (Cause E764 of 2021 & 47 of 2019 (Consolidated)) [2023] KEELRC 3132 (KLR)
The bottom line
#A Kenyan employment court allowed a stay of execution, but only on condition the employer secures a banker's guarantee covering the full award within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether substantial loss may result to the applicant unless a stay of execution is granted
- 2.Whether the application was made without unreasonable delay
- 3.Whether the applicant has offered/given suitable security for the due performance of the decree
Key legal issues
#Conditions for grant of stay of execution pending appeal
The court applied the three-pronged Order 42 rule 6 test: substantial loss, no unreasonable delay, and security.
The court set out the statutory conditions from Order 42 rule 6(2) and endorsed the formulation in Joseph Odide Walome and Halal & Another v Thornton & Turpin Ltd, holding that the discretion must balance the decree holder's right to enjoy the fruits of judgment against the appellant's need for restitution if the appeal succeeds.
Substantial loss and ability to refund the decretum
The claimant's disclosed jointly-owned property valued at Ksh 20,500,000 meant substantial loss was not clearly established, but the court still directed security to preserve restitution.
The claimant demonstrated capacity to refund by disclosing a Syokimau title with a valuation of Ksh 20.5 million against a decretum of about Ksh 6.8 million; the applicant questioned the title's joint ownership and lack of official search, but the court chose to balance both interests through a conditional stay rather than deny or grant an unconditional stay.
Nature of acceptable security
A banker's guarantee is acceptable security and was ordered as a condition of stay.
Relying on the applicant's proposal and authority (Geonet Communications Limited v Safaricom Plc), the court held that Order 42 rule 6 does not limit the type of security, leaving the choice to judicial discretion, and directed a guarantee covering the full decretal sum within 30 days, failing which execution would issue.
Delay
The court did not expressly find the delay inordinate; the application proceeded on the merits.
The applicant explained that certified proceedings and judgment were yet to be supplied; the claimant alleged nearly three months' delay, relying on Charles Mwangi Kiiru. The ruling does not record an adverse finding on delay, dealing instead principally with security, indicating delay was not treated as fatal.
Legal principles established
#- Stay of execution under Order 42 rule 6 requires substantial loss, absence of unreasonable delay, and security for due performance of the decree.
- Mere execution or its likelihood does not amount to substantial loss; the applicant must show execution will irreparably affect the essential core of its appeal.
- Order 42 rule 6 does not restrict the form of security; a banker's guarantee is suitable security.
Court orders
#- 1.Within 30 days of the ruling, the applicant shall procure from a reputable financial institution a banker's guarantee to the full extent of the decretal sum and file the same in court and serve it on the respondent
- 2.In default of furnishing the guarantee, execution shall proceed
- 3.Costs of the application to be in the cause (as sought; no separate costs order pronounced)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
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 court hereby orders That within 30 days of this ruling, the applicant shall procure from a reputable financial institution, a guarantee to the full extent of the decretal sum herein and file same in court and serve the same on the respondent. In default, execution shall proceed.
Order 42 rule 6 does not delimit the nature of the security to be provided by the applicant. This is therefore left to the discretion of the Court. A banker's a guarantee is therefore a suitable security.
the applicant must establish other factors which show That the execution will create a state of afiairs That will irreparably afiect or negate the very essential core of the Applicant as the successful party in the appeal.
It is so ordered.
Issues in the judgment
#The Notice of Appeal date is inconsistently stated in the judgment (filed 6th March 2023 per the supporting affidavit, but counsel's submissions record filing on 3rd March 2023).
Role labels are internally inverted: the employer, sued as Respondent, styles itself 'Applicant/Respondent' and refers in its draft appeal to the other party as 'Appellant'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamiri v Agricultural Society of Kenya (Cause E764 of 2021 & 47 of 2019 (Consolidated)) [2023] KEELRC 3132 (KLR)", Case Analysis (2023). Not stated in the judgment text (ELRC suit; underlying judgment delivered 23rd February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3132/eng@2023-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.