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ELRCDismissedNotice of Motion Application dated 8th March 2024· [2024] KEELRC 756 (KLR)

Maina v Standard Group Limited (Employment and Labour Relations Cause 1922 of 2016) [2024] KEELRC 756 (KLR)

Employment and Labour Relations Court
8 April 2024
2,208 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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The Respondent/Applicant, the judgment-debtor in an employment dispute, moved the court by Notice of Motion dated 8th March 2024 under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a stay of execution of a decree of KShs.3,528,032 plus costs and interest entered on 13th July 2023, and consequential release of two motor vehicles (KCH 303K and KDC 179S) seized by Mamaco Auctioneers without, it alleged, prior proclamation. The Applicant, having filed a notice of appeal, argued that the Claimant was a man of no known means and that execution would render the intended appeal nugatory, and offered security. The Claimant/Respondent opposed, contending the application was filed eight months after judgment with no explanation, that the attachment followed a duly taxed bill, taxation decree and warrants, and that he is a man of means - a CEO earning KShs.920,028 monthly with land and rental income of over KShs.304,000 per month. He also noted the absence of a draft memorandum of appeal. The court framed three issues: merit, timeliness, and nugatory-ness. Applying Order 42 Rule 6 as imported by Rule 32 of the ELRC Procedure Rules 2016, it held the eight-month delay unexplained and inordinate, and that the Applicant failed to demonstrate substantial loss, since the Claimant's evidence of means was unrebutted. The application was dismissed with costs.

Key legal issues

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01

Whether the application was filed without undue delay

Holding

The application filed 8 months after judgment was inordinately delayed and no explanation was given

Reasoning

The court noted that the application was filed almost eight months after the judgment sought to be appealed. Order 42 Rule 6 requires that a stay application be brought without undue delay. The Applicant did not explain the delay, which the court held was inordinate, defeating the application on this limb alone.

p. 4
02

Whether the Applicant would suffer substantial loss if stay is not granted

Holding

No substantial loss demonstrated; the decree holder proved he is a man of means capable of refunding the decretal sum

Reasoning

The Applicant alleged the Claimant was a man of no known means so the appeal would be rendered nugatory. The Claimant rebutted this by showing he is a CEO earning KShs.920,028 monthly and owns land and rental properties. That evidence was not challenged, so the court was not persuaded substantial loss was shown.

p. 4

Legal principles established

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  • An application for stay of execution pending appeal must be lodged without undue delay and the delay must be explained
  • A successful litigant should not be deprived of the fruits of judgment without just cause
  • The applicant for stay bears the burden of demonstrating substantial loss with sufficient material

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.Costs awarded to the Claimant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relation Court (Procedure) Rules 2016Rule 32
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Butt v Rent Restriction Tribunal
    (1982) eKLR 417
  • MNW v LNN
    Civil Appeal No. 3 of 2019 – Nyahururu High Court
  • Peter Maosa Nyangau v National Bank of Kenya & Another
    (2021) eKLR
  • Kenya Shell Limited v Benjamin Kanga Kibiru & Another
    (1922-88) eKLR 1018
  • Kenya Shell v Keruga
    null
On appeal from
null
null
Jurisdiction invoked
Order 42, Rule 6 of the Civil Procedure Rules; Section 1A, 1B and 3A of the Civil Procedure Act; Rule 32 of the Employment and Labour Relation Court (Procedure) Rules 2016

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, "Maina v Standard Group Limited (Employment and Labour Relations Cause 1922 of 2016) [2024] KEELRC 756 (KLR)", Case Analysis (2024). Notice of Motion Application dated 8th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/756/eng@2024-04-08

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