Oseme v Swahili Beach Resort Ltd (Cause 42 of 2019) [2024] KEELRC 114 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the stay application was made without unreasonable delay
The application filed over seven months after the decree and over seven months after the Notice of Appeal was inordinately delayed and unexplained
Judgment was delivered on 8/12/2022 and a Notice of Appeal lodged on 13/12/2022, yet the application was filed on 1/8/2023. Under Rule 82(1) of the Court of Appeal Rules an appeal must be instituted within sixty days of the notice, failing which Rule 83 deems the notice withdrawn. The court, however, decided the matter on Order 42 Rule 6(2), which requires the application to be made without unreasonable delay, and found the seven-month delay inordinate and unexplained.
Whether the Applicant demonstrated substantial loss
The Applicant neither demonstrated nor even alleged substantial loss or inability by the Claimant to refund the decretal sum should the appeal succeed
Relying on James Wangalwa & another v Agnes Naliaka Cheseto, the court held that mere execution or likelihood of execution is not substantial loss because execution is a lawful process. The Applicant had to show that execution would irreparably affect or negate the very essential core of its appeal. No such demonstration, or even allegation of the Claimant's inability to refund, was made, so the appeal would not be rendered nugatory.
Legal principles established
#- An applicant for stay of execution pending appeal under Order 42 Rule 6(2) must establish all the conditions in that sub-rule, including that the application was made without unreasonable delay and that substantial loss may result
- Execution being put in motion does not by itself amount to substantial loss; the applicant must show irreparable effect on the essential core of its successful appeal
- A deposit of the decretal sum as a condition for interim stay cannot be the sole basis on which a stay application succeeds
Court orders
#- 1.The Respondent/Applicant's Notice of Motion dated 1/8/2023 is dismissed with costs
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Section 13 of the Employment and Labour Relations Court Act read with Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makori v Independent Medico-Legal Unit (Cause E028 of 2023) [2025] KEELRC 820 (KLR)[2025] KEELRC 820 (KLR)7 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Oseme v Swahili Beach Resort Ltd (Cause 42 of 2019) [2024] KEELRC 114 (KLR)", Case Analysis (2024). Cause No 42 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/114/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.