Osire v Mega Pack (K) Limited (Cause 66 of 2018) [2023] KEELRC 3160 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution was filed without undue delay
The court found no undue delay, the respondent having explained the steps taken between judgment and filing.
The judgment was delivered on 15th June 2023, a notice of appeal was filed on 21st June 2023, and the stay application was filed on 30th August 2023. The court held that each cause must be considered on its own merits and that the respondent's explanation of steps taken towards the appeal in the interim sufficed to show the application was made without undue, inordinate or unreasonable delay.
Whether the respondent would suffer substantial loss if stay was denied
The decretal sum of Kshs.127,722 was neither colossal nor substantial; payment of a lawful decree is not itself a loss, but the claimant's failure to prove ability to refund if the appeal succeeded weighed in favour of stay.
The court held that settling a lawful decree should not be viewed as substantial loss in itself. However, if the decretal sum is paid and the appeal succeeds, the court must consider whether the claimant can refund it; otherwise the appeal would be rendered nugatory. The claimant, who alleged a monthly salary of Kshs.140,000, produced only a letter of employment without a pay-slip or bank statement, and thus failed to discharge the shifted burden of proving liquidity.
Whether security for due performance of the decree was offered
The respondent's stated readiness and willingness to comply with orders on security demonstrated goodwill and good faith, satisfying the third condition.
The respondent deposed that it was ready and willing to provide security for due performance of the decree or as the court might order. The court accepted this as demonstrating goodwill and good faith, and fashioned a conditional stay requiring the decretal sum plus costs to be deposited in a joint interest-earning account within 30 days, failing which the stay would lapse.
Legal principles established
#- The conditions for stay of execution in the ELRC are those in Order 42 rule 6(2): no undue delay, substantial loss, and security for due performance of the decree.
- Where it is alleged that the decree-holder is impecunious, the burden of proving liquidity shifts to the decree-holder.
Court orders
#- 1.An order for stay of execution be and is hereby issued pending the hearing and determination of the appeal.
- 2.The respondent shall deposit the entire decretal sum plus costs in a joint interest earning account in the joint names of its lawyers and that of the lawyers for the claimant.
- 3.The account shall be opened and the monies deposited within 30 days from the date of the ruling, failure of which the stay orders shall lapse.
- 4.The costs of the application shall abide with the outcome of the appeal.
- Jurisdiction invoked
- Section 3 and 17(1) of the Employment and Labour Relations Court Act; Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osire v Mega Pack (K) Limited (Cause 66 of 2018) [2023] KEELRC 3160 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3160/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.