Ogutu v Maya Duty Free Limited (Employment and Labour Relations Cause 13 of 2020) [2024] KEELRC 299 (KLR)
The bottom line
#A Kenyan employment court paused execution of a judgment, but only if the losing employer deposits KShs 800,000 and files its appeal within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Inordinate delay in filing the stay application
The approximately 9-month delay was reasonably explained by the time taken to obtain certified copies of the judgment and proceedings, supported by a Certificate of Delay.
The application was filed on 24th August 2023, about 9 months after the judgment of 7th November 2022. The applicant attributed the delay to the registry, having applied for certified copies in November 2022 and made follow-ups; the proceedings were ready on 8th May 2023 but the file had been forwarded for the taxation ruling. Relying on Njoroge v Kimani, the court held delay in obtaining certified proceedings cannot be faulted on the applicant.
Substantial loss
The applicant demonstrated a possibility of substantial loss since the claimant did not avail evidence of ability to refund the decretal sum if the appeal succeeds.
Applying National Industrial Credit Bank Ltd v Wasike, the court held that once an applicant expresses a reasonable fear that the respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show his resources. The claimant adduced no evidence that he could refund the sum, and there was evidence of proclamations of the applicant's goods, showing real danger of execution.
Security and sufficient cause
The applicant's willingness to deposit Kshs 800,000 as directed by the court on 2nd October 2023, together with its attached draft Memorandum of Appeal, satisfied the security and sufficient-cause conditions.
The court had on 2nd October 2023 directed that the application could be compromised by depositing Kshs 800,000 in a joint interest-earning account; the applicant confirmed on 30th October 2023 it was ready to open the account, showing willingness to provide security. The attached draft Memorandum of Appeal and evidence of attempted proclamations demonstrated seriousness and a real danger of execution before the appeal.
Legal principles established
#- Delay attributable to waiting for certified proceedings and judgment cannot be faulted on the applicant and may be excused as reasonably explained.
- Once an applicant for stay expresses a reasonable fear that the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his resources.
- Security under Order 42 rule 6 is meant to guarantee due performance of the decree, not to punish the judgment debtor.
- Mere filing of a Notice of Appeal is not enough to establish sufficient cause under Order 42 rule 6; a Memorandum of Appeal provides cogent evidence of sufficient cause.
Court orders
#- 1.Interim stay of execution of the judgment and decree of the Employment and Labour Relations Court issued on 7th November 2022 pending the intended appeal
- 2.The Respondent/Applicant given 30 days to file the record of appeal
- 3.The Respondent/Applicant to deposit part of the security being Kshs 800,000 in a joint interest earning account between the two respective law firms within 30 days
- 4.In default of compliance within 30 days, the stay orders cease to be operational and execution will proceed forthwith
- On appeal from
- Employment and Labour Relations Court
- Judgment delivered 7th November 2022 (Hon. Lady Justice Maureen Onyango)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogutu v Maya Duty Free Limited (Employment and Labour Relations Cause 13 of 2020) [2024] KEELRC 299 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/299/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.