Kanjau v Kenya Power & Lighting Co. Ltd (Employment and Labour Relations Cause E005 of 2022) [2024] KEELRC 1090 (KLR)
The bottom line
#A Kenyan court refused to pause a money judgment on appeal because the losing party never showed the winner couldn't repay the money.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss to justify stay pending appeal
The applicant failed to express any doubt about the claimant's ability to repay, so substantial loss was not proved
Under Order 42 Rule 6(2), the applicant must show substantial loss, no unreasonable delay, and offer security. While delay and security were satisfied, the applicant never alleged the claimant could not refund the decretal sum. Without that allegation, the evidential burden never shifted to the claimant to demonstrate his means, so the primary threshold was not met.
Whether the application was brought without undue delay and with offer of security
The court was satisfied the application was brought timeously and security was offered, but this could not cure failure on substantial loss
The court accepted that the motion was filed promptly after judgment and the applicant offered one third of the decretal sum as security. However, since proof of substantial loss is the cornerstone and was lacking, the application still failed on the primary threshold.
Legal principles established
#- An appeal is rendered nugatory where the successful appellant is unable to recover the decretal sum paid, and proof of substantial loss is the cornerstone of an application for stay pending appeal
- The legal burden lies on the applicant to show the decree-holder cannot repay, and only then does the evidential burden shift to the respondent
Court orders
#- 1.The Notice of Motion dated 1st November 2023 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanjau v Kenya Power & Lighting Co. Ltd (Employment and Labour Relations Cause E005 of 2022) [2024] KEELRC 1090 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1090/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.