Olemuteke v Jiwa (Cause 35A of 2018) [2024] KEELRC 671 (KLR)
The bottom line
#A Kenyan employment court paused execution of a Kshs. 312,630 award pending appeal, after the judgment debtor failed to prove he could refund the money.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss if stay is not granted
Substantial loss was established because the respondent pleaded means to refund the decretal sum but provided no proof; the court found the applicant likely to suffer substantial loss if execution proceeds.
The court applied the James Wangalwa principle that execution alone is not substantial loss. The respondent asserted he was a man of means able to refund the taxed costs should the appeal succeed, but furnished no accounts or proof of such means. In light of the applicant's depositions, the court held the respondent should have provided proof of the means to refund the decretal sum, and found substantial loss likely.
Whether the application was made without unreasonable delay
No inordinate delay was found; the Notice of Appeal was lodged 13 days after judgment, within the 14 days allowed under Rule 77(2) of the Court of Appeal Rules, 2022.
Although the respondent argued the application came 11 months after judgment and only after proclamation by auctioneers, the court focused on the notice of appeal, filed 13 days after the judgment of 9th March 2023. The court reasoned the appeal can only be filed upon obtaining typed proceedings, which the applicant had requested on 17th March 2023 and was yet to receive.
Whether a stay of execution can issue in respect of taxed costs
Yes; the taxed costs emanate from the judgment and decree being appealed and cannot be separated, so a failure to stay the decree on costs could occasion substantial loss.
The respondent argued there can be no stay of execution on costs. The court rejected this, holding that the costs taxed on 25th October 2023 were awarded by the judgment and decree of 9th March 2023, not by the certificate of costs; taxation is not an independent proceeding. Since the intended appeal targets that judgment and decree, the costs cannot be severed from the stay.
Whether security for the due performance of the decree was offered
The applicant claimed to have deposited the decretal sum into the Judiciary account, but no proof of payment was provided; the court therefore conditioned the stay on depositing or proving payment of Kshs. 312,630/- within 15 days.
The applicant asserted he had paid the decretal sum and exhibited a receipt marked RBO-1, but the court found RBO-1 was in fact the Notice of Appeal dated 22nd March 2023 and no proof of the payment of Kshs.312,630/- was provided. The stay was therefore granted subject to a deposit or proof of payment condition.
Legal principles established
#- Execution is a lawful process and does not by itself amount to substantial loss; the applicant must show execution will irreparably affect or negate the essential core of the successful party in the appeal.
- Taxation of costs is not an independent proceeding; it emanates from the judgment and decree and is part and parcel thereof, so an intended appeal against the judgment encompasses the taxed costs.
Court orders
#- 1.The Applicant's application dated 24th January 2024 is allowed and a grant of stay of execution of the Judgment and Decree pending appeal in the Court of Appeal is issued
- 2.The Applicant/Appellant shall deposit the entire decretal sum of Kshs. 312,630/- in Court within 15 days of the ruling, or if already paid, produce and serve the Respondent with proof of the payment into the Judiciary account within the said period
- 3.No order as to costs
- Jurisdiction invoked
- Sections 3A and 63(e) of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olemuteke v Jiwa (Cause 35A of 2018) [2024] KEELRC 671 (KLR)", Case Analysis (2024). Bungoma Employment and Labour Relations Court ELRC Cause No. 35 A of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/671/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.