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ELRCDismissedCause No 42 of 2019· [2024] KEELRC 114 (KLR)

Oseme v Swahili Beach Resort Ltd (Cause 42 of 2019) [2024] KEELRC 114 (KLR)

Employment and Labour Relations Court
1 February 2024
1,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, Judge) delivered on 1 February 2024 on the Respondent/Applicant's Notice of Motion dated 1 August 2023 seeking stay of execution of the court's judgment and decree of 8 December 2022 pending appeal to the Court of Appeal. Costs of the suit had been assessed at Kshs. 252,155 on 30 June 2023, and the 30 days' stay granted at delivery had lapsed. The application was opposed by the Claimant/Respondent on grounds of inordinate and unexplained delay, failure to demonstrate substantial loss, and abuse of process. The court analysed Order 42 Rule 6 of the Civil Procedure Rules, whose conditions in sub-rule (2) fetter the discretion to grant a stay: substantial loss, absence of unreasonable delay, and security for due performance. The court found the application was filed over seven months after the decree and the Notice of Appeal lodged on 13 December 2022, an inordinate and unexplained delay, especially given the Court of Appeal requirement to institute an appeal within sixty days of the notice. The court further held that the Applicant neither demonstrated nor alleged substantial loss or the Claimant's inability to refund the decretal sum, and that the interim deposit of the decretal sum under the court's 4 October 2023 order could not be the sole basis for granting stay. Relying on Mae Properties Limited v Joseph Kibe and James Wangalwa v Agnes Naliaka Cheseto, the court dismissed the Notice of Motion with costs.

Key legal issues

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01

Whether the stay application was made without unreasonable delay

Holding

The application filed over seven months after the decree and over seven months after the Notice of Appeal was inordinately delayed and unexplained

Reasoning

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.

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02

Whether the Applicant demonstrated substantial loss

Holding

The Applicant neither demonstrated nor even alleged substantial loss or inability by the Claimant to refund the decretal sum should the appeal succeed

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Respondent/Applicant's Notice of Motion dated 1/8/2023 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 13
  • Civil Procedure ActRules made thereunder
  • Civil Procedure RulesOrder 42 Rule 6(1), (2), (4)
  • Court of Appeal RulesRule 82(1); Rule 83 (as quoted in Mae Properties)

Cases cited (5)

  • Mae Properties Limited v Joseph Kibe & another
    [2017] eKLR
  • Martin Kibaya v David Mungania Kiambi – Nyeri Civil Application No. 12 of 2015
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Silverstein v Chesoni
    [2002] eKLR 867
  • Mukuma v Abuoga
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.