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ELRCDismissedNot stated in extract· [2024] KEELRC 1090 (KLR)

Kanjau v Kenya Power & Lighting Co. Ltd (Employment and Labour Relations Cause E005 of 2022) [2024] KEELRC 1090 (KLR)

Employment and Labour Relations Court
15 May 2024
1,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent (as styled in the ruling) filed a Notice of Motion dated 1st November 2023 under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40, 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules seeking stay of execution of a judgment and decree delivered on 29th September 2023, pending hearing of the application and an intended appeal following a notice of appeal dated 4th October 2023. Through the affidavit of its advocate, Anne Mulela, the applicant argued the appeal was arguable, that execution would cause substantial loss, that there was no delay, and offered one third of the decretal sum (Kshs 547,053) as security in a joint interest-earning account. The claimant opposed, asserting the appeal had no prospects, that no substantial loss was demonstrated, and that only deposit of the full decretal sum would suffice; only the claimant filed submissions, citing Antonie Ndiave v African Virtual University and Kenya Commercial Bank Ltd v Sun City Enterprises. Justice Onesmus N Makau framed a single issue: whether the applicant met the Order 42 Rule 6(2) threshold. Relying on National Industrial Credit Bank Ltd v Aquinas Francis Wasike and ABN Amro Bank N v Lemond Foods, the court held that substantial loss is the cornerstone of such applications; since the applicant never expressed doubt about the claimant's ability to repay, the evidential burden never shifted. Although delay and security were satisfied, the motion was dismissed with costs on 15th May 2024.

Key legal issues

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01

Whether the applicant demonstrated substantial loss to justify stay pending appeal

Holding

The applicant failed to express any doubt about the claimant's ability to repay, so substantial loss was not proved

Reasoning

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.

p. 2
02

Whether the application was brought without undue delay and with offer of security

Holding

The court was satisfied the application was brought timeously and security was offered, but this could not cure failure on substantial loss

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 1st November 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40; Order 42 Rule 6(2); Order 51 Rule 1
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Antonie Ndiave v African Virtual University
    [2015] eKLR
  • Kenya Commercial Bank Ltd v Sun City Enterprises
    [2012] eKLR
  • National Industrial Credit Bank Limited v Aquinas Francis Wasike and Another
    [2006] eKLR
  • ABN Amro Bank N v Lemond Foods Limited
    Civil Application No.15 of 2002
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

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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, "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.