Gurdev Engineering & Construction Works Limited v Kimathi (Employment and Labour Relations Appeal E065 of 2023) [2024] KEELRC 173 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules
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
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.
Legal principles established
#- 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
#- 1.The Appellant's/Applicant's Notice of Motion dated 10th May 2023 is dismissed
- 2.The dismissal is without costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.