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ELRCAllowedNot stated in the judgment (Notice of Motion dated 6th February 2023, arising from MCELR No. 61 of 2018 – Kiambu)· [2023] KEELRC 3304 (KLR)

Kenya Kazi Security Limited v Wanyoike (Appeal 192 of 2022) [2023] KEELRC 3304 (KLR)

Employment and Labour Relations Court
20 December 2023
MNMathews N. Nduma
595 words in judgment
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The bottom line

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A Kenyan employment court halted execution of a Kshs. 693,000 judgment because the losing party was never heard, provided the money is first secured in a joint account.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 6th February 2023 in which the appellant/applicant sought, ex parte if necessary, a stay of execution of the decree issued on 25th January 2023 by the Chief Magistrate in MCELR No. 61 of 2018 – Kiambu, and a stay of further proceedings in that suit, pending hearing of the applicant's Notice of Motion dated 25th October 2022. The lower court had heard the suit ex parte after dismissing the applicant's adjournment application and, on 28th September 2022, entered judgment against it for approximately Kshs. 693,000 plus costs and interest. The respondent filed a preliminary objection dated 15th December 2022 and a replying affidavit, contending that the application did not meet the Order 42 rule 6 threshold of substantial loss, absence of unreasonable delay and security for due performance of the decree. Nduma J found the application timeous, filed with the notice of appeal before expiry of the 30-day period, and held that the applicant, not having been heard before judgment, was likely to suffer substantial loss; following Select Car Limited v Gold Rock Development Ltd, the court found the respondent would suffer no prejudice if the decretal sum were deposited in a joint interest-earning account in the names of both advocates within 30 days. The court granted the stay pending appeal on those terms, with the stay lapsing and execution issuing if the deposit was not made timeously. Costs were awarded in the cause.

Key legal issues

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Whether the applicant met the Order 42 rule 6 threshold for stay of execution

Holding

Yes - the application was filed timeously, the applicant was not heard before judgment and risks substantial loss, and the respondent will suffer no prejudice if the decretal sum is secured in a joint interest-earning account

Reasoning

Judgment was delivered on 28th September 2022 and the application, together with the notice of appeal, was filed before expiry of the 30-day period, so there was no inordinate delay. The applicant was not heard before judgment of approximately Kshs. 693,000 was entered, making substantial loss likely. The court relied on Select Car Limited v Gold Rock Development Ltd and conditioned the stay on deposit of the decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for the due performance of the decree is given
  • A party not heard before judgment, whose application is filed timeously, may suffer substantial loss warranting stay, particularly if the respondent suffers no prejudice that cannot be remedied by costs

Court orders

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  1. 1.Stay of execution of the judgment delivered on 28th September 2022 and any decree issued pursuant thereto, pending the hearing and determination of the appeal
  2. 2.Condition that the decretal sum be deposited in a joint interest-earning account in the names of the advocates for the applicant and the respondent within 30 days of the ruling, failing which the stay lapses and execution to issue
On appeal from
Chief Magistrate's Court, Kiambu
MCELR No. 61 of 2018
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal); the judgment also cites 'order 19 Rule 3(1) of Civil Procedure Rule No. 10' as invoked by the respondent's preliminary objection

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, "Kenya Kazi Security Limited v Wanyoike (Appeal 192 of 2022) [2023] KEELRC 3304 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 6th February 2023, arising from MCELR No. 61 of 2018 – Kiambu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3304/eng@2023-12-20

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