Wachira v East African Portland Cement Company Limited (Employment and Labour Relations Cause 339 of 2019) [2024] KEELRC 1968 (KLR)
The bottom line
#Kenya's Employment Court paused enforcement of a Kshs 2.1 million judgment, but only if the losing employer deposits Kshs 1.5 million and files its appeal within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Undue delay
The application was filed timeously and without undue delay.
The judgment was delivered on 23rd February 2024 with a 30-day stay; the application was filed on 19th March 2024, within that window and shortly after the notice of appeal dated 1st March 2024. The court found the application filed timeously and treated the annexed notice of appeal as evidence of the applicant's diligence in preparing the appeal.
Substantial loss
Substantial loss was demonstrated; the evidential burden shifted to the Claimant to show ability to refund, and he did not discharge it.
Relying on Bii v Kenya National Union of Nurses, which quoted National Industrial Credit Bank v Wasike and ABN Amro Bank v Lemond Foods, the court held the applicant discharges its legal burden by alleging the claimant has no known means of refund. The applicant so alleged, shifting the evidential burden to the Claimant, who made no effort to prove capacity to refund the decretal sum should the appeal succeed.
Security
The applicant's offer to deposit 50% of the principal amount sufficed as security, subject to the court's own direction.
Citing Arun C Sharma v Ashana Raikundalia, the court noted security under Order 42 guarantees due performance of the decree rather than punishing the judgment debtor. The applicant expressed willingness to deposit 50% of the principal; the court accepted this but fixed its own figure of Kshs 1,500,000 in a joint interest-earning account.
Legal principles established
#- An applicant for stay bears the legal burden of proving the judgment creditor is a man of straw; once that is alleged, the evidential burden shifts to the respondent to show ability to refund the decretal sum.
- The conditions for stay of execution pending appeal under Order 42 Rule 6 are substantial loss, application without undue delay, and security for due performance of the decree.
Court orders
#- 1.Prayers 2, 3 and 4 of the notice of motion dated 19th March 2024 granted - interim and pending-application stay of execution of the judgment delivered on 23rd February 2024 and the resultant decree, and stay pending the hearing and final determination of the intended appeal
- 2.The Applicant to deposit Kshs 1,500,000 in a joint interest-earning account in the names of the respective counsels within 45 days from the date of the ruling
- 3.The Applicant to file its appeal within 45 days from the date of the ruling, failing which the stay of execution will lapse and the Respondent will be at liberty to proceed with execution of the judgment
- 4.Costs of the application to be in the intended appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules - stay of execution pending appeal to the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachira v East African Portland Cement Company Limited (Employment and Labour Relations Cause 339 of 2019) [2024] KEELRC 1968 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1968/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.