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ELRCDismissedNotice of Motion dated 10th May 2023 (arising from appeal against judgment in CMEL E219 of 2020)· [2024] KEELRC 173 (KLR)

Gurdev Engineering & Construction Works Limited v Kimathi (Employment and Labour Relations Appeal E065 of 2023) [2024] KEELRC 173 (KLR)

Employment and Labour Relations Court
9 February 2024
1,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a company's request to pause payment of a judgment because it only claimed it would suffer loss without explaining how.

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 (Ocharo Kebira J) on a Notice of Motion dated 10th May 2023 by Gurdev Engineering & Construction Works Limited, the appellant in an appeal against a judgment entered against it on 17th April 2023 in CMEL E219 of 2020 - Dominiciano Kimathi v Gurdev Engineering & Construction Works Limited, in which a decree of Kshs. 1,370,146 plus costs and interest was entered against it. The appellant sought a stay of execution of that judgment and decree pending appeal under Order 42 rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 165 of the Constitution. The application was unopposed, the respondent having been served but not having filed a response. The court framed a single issue: whether stay of execution should be granted pending appeal. Applying Order 42 rule 6(1) and (2), the court held that although the application was unopposed, the applicant still had to satisfy the legal threshold, and that the first condition - demonstration of substantial loss - had not been met. The applicant's assertion of irreparable loss, including inability to recover the decretal sum if paid to the respondent, was unsupported by any explanation in the supporting affidavit. Citing Century Oil Trading Company Ltd v Kenya Shell Limited, the court reiterated that substantial loss requires demonstration, not bald assertion. Having failed on that condition, the court declined to consider the other conditions, dismissed the application and, because it was unopposed, made no order as to costs. Orders were issued on 9th February 2024.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules

Holding

The Applicant failed to demonstrate substantial loss, being the first and decisive condition; the court found it unnecessary to consider the other conditions and dismissed the application

Reasoning

Order 42 rule 6(2) requires satisfaction that substantial loss may result unless the order is made, that the application was made without unreasonable delay, and that security is given. The Applicant merely asserted irreparable loss generally without explaining the basis for the alleged loss, including the claimed inability to recover the decretal sum of Kshs. 1,370,146 from the Respondent. Having failed on the first condition, the court did not address the remaining conditions and dismissed the unopposed application without costs.

p. 3

Legal principles established

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  • It does not suffice for an applicant to baldly state that he or she will suffer substantial loss; the applicant must demonstrate how and on what basis the loss will occur
  • The discretion to grant a stay of execution pending appeal is fettered and only exercisable where the conditions set out in Order 42 of the Civil Procedure Rules are met
  • An unopposed application must still satisfy the legal threshold for the orders sought

Court orders

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  1. 1.The Appellant's/Applicant's Notice of Motion dated 10th May 2023 is dismissed
  2. 2.The dismissal is without costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 165
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 22 rule 22
  • Civil Procedure Rules 2010Order 42 rule 6
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Rules 2010Order 21 Rule 1

Cases cited (1)

  • Century Oil Trading Company Ltd vs. Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
On appeal from
Trial Court (CMEL E219 of 2020)
CMEL E219 of 2020
Jurisdiction invoked
Article 165 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 22 rule 22, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Gurdev Engineering & Construction Works Limited v Kimathi (Employment and Labour Relations Appeal E065 of 2023) [2024] KEELRC 173 (KLR)", Case Analysis (2024). Notice of Motion dated 10th May 2023 (arising from appeal against judgment in CMEL E219 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/173/eng@2024-02-09

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