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ELRCAllowedMavoko EMEL No. 145 of 2019· [2024] KEELRC 1155 (KLR)

Endmor Steel Millers Ltd v Kasembeli (Appeal E230 of 2023) [2024] KEELRC 1155 (KLR)

Employment and Labour Relations Court
24 April 2024
DMD. K. Njagi Marete
607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court paused enforcement of an award against Kasembeli, but only if he deposits the full Ksh.943,800 within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court on an application dated 15th September, 2023 in which the Applicant sought, on a certificate of urgency, a stay of execution and/or extension of stay of the Ruling and all consequential Orders issued in Mavoko EMEL No. 145 of 2019 (Frankline Kasembeli v Endmor Steel Millers Limited) delivered on 31st October, 2023 by Honourable Barbara Ojoo, pending hearing of the application inter partes and of an appeal lodged. The Respondent opposed the application by a Replying Affidavit sworn on 27th November, 2023, describing it as an abuse of the process of court and intended to delay justice, and contending that the Applicant had not demonstrated substantial loss. She relied on James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR for the proposition that the mere motion of execution does not amount to substantial loss. The Applicant relied on Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR for the three conditions fettering the discretion to stay, and on Hassan Guyo Wakalo v Straman EA Ltd (2013) on the nugatory-appeal requirement. The court, D. K. Njagi Marete, Judge, treated the matter as resting on its discretionary power and, noting the subject is well settled, allowed the application on condition that the Applicant make and deposit the decretal sum of Ksh.943,800.00 within 30 days of the ruling. The ruling was delivered, dated and signed on 24th April, 2024. No costs order is stated.

Key legal issues

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01

Whether the applicant satisfied the conditions for grant of stay of execution pending appeal

Holding

The application for stay of execution was allowed, conditional upon the applicant depositing the decretal sum of Ksh.943,800.00 within 30 days.

Reasoning

The court framed the matter as one resting on its discretionary power to grant or decline stay. It recited the settled conditions from Halai v Thornton & Turpin (sufficient cause, substantial loss, security, no unreasonable delay) and the nugatory-appeal requirement from Hassan Guyo Wakalo v Straman EA Ltd. It observed the subject was exhausted and did not belabour the authorities, then allowed the application subject to security in the form of a deposit of the decretal sum within 30 days.

p. 2

Legal principles established

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  • The High Court's (and by extension this court's) discretion to order stay of execution is fettered by conditions of sufficient cause, substantial loss, security, and application without unreasonable delay
  • The mere fact that execution has been put in motion or is likely to be put in motion does not amount to substantial loss
  • An applicant for stay must prove that if the orders sought are not granted and the appeal eventually succeeds, the appeal shall have been rendered nugatory

Court orders

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  1. 1.Stay of execution of the Ruling and/or all consequential Orders issued in Mavoko EMEL No. 145 of 2019 delivered on 31st October, 2023 by Honourable Barbara Ojoo granted/extended pending the hearing and determination of the appeal
  2. 2.The Applicant to make and deposit the decretal sum of Ksh.943,800.00 within 30 days of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (3)

  • James Wangalwa & Another versus Agnes Naliaka Cheseto
    (2012) eKLR
  • Halai And Another –vs- Thornton & Turpin (1963) LTD
    [1990] KLR
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Endmor Steel Millers Ltd v Kasembeli (Appeal E230 of 2023) [2024] KEELRC 1155 (KLR)", Case Analysis (2024). Mavoko EMEL No. 145 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1155/eng@2024-04-24

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