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ELRCAllowedELRC Appeal arising from Mombasa MCELRC No. E566 of 2021· [2024] KEELRC 2085 (KLR)
AGL Kenya Limited (Formerly Bollore Transport and Logistics Kenya Limited) v Abdalla (Appeal E070 of 2024) [2024] KEELRC 2085 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The appellant moved the court by notice of motion dated 25 April 2024 under Order 42 Rule 6 and Order 51 of the Civil Procedure Rules and Rule 8 of the ELRC (Procedure) Rules, 2016, seeking a stay of execution of the judgment of the trial court in Mombasa MCELRC No. E566 of 2021 delivered on 25 March 2024, which partly held the appellant liable to pay the respondent leave pay. Lugadiru, the appellant's legal officer, deposed that the trial court failed to consider the leave schedule on the respondent's application forms, that the appeal had high chances of success, and that a demand for Ksh.1,113,749 placed the appellant in imminent danger of execution; the appellant offered security. The respondent, through advocate Kitonga Kiiva, opposed the application, contending that a right of appeal does not supersede the right to enjoy the fruits of a valid judgment and that the appellant had failed to demonstrate substantial loss or offer security. The court identified the core issue as the payment of annual leave and applied Order 42 Rule 6 principles, drawing on Shell Ltd v Kibiru, James Wangalwa, and Nduhiu Gitahi, which stress substantial loss as the cornerstone of a stay and the duty to preserve both parties' rights pending appeal. Noting that the contested leave days were assessed at Ksh.984,549 and that a cross-appeal was on record, the court held the application merited. It allowed a conditional stay: the appellant to deposit Ksh.984,549 in a joint interest-earning account within 30 days, failing which the stay lapses; records of appeal and cross-appeal to be filed within 14 days; directions on 25 July 2024; costs to abide the appeal.
Key legal issues
#01
Whether the appellant demonstrated substantial loss to warrant a stay of execution under Order 42 Rule 6
Holding
The court found the application merited and granted a conditional stay, securing the decretal amount in a joint interest-earning account
Reasoning
The court applied Order 42 Rule 6 principles as set out in Shell Ltd v Kibiru and James Wangalwa, emphasising substantial loss as the cornerstone of stay jurisdiction. Considering the contested leave days assessed at Ksh.984,549 and the existence of a cross-appeal by the respondent, the court reasoned that justice would best be served by preserving the funds pending appeal through a joint interest-earning account rather than by allowing execution or refusing the stay outright.
p. 3
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution; without evidence of substantial loss it is difficult to keep a respondent out of their money
- A stay of execution is granted to preserve the rights of both parties pending appeal, holding the ring even-handedly
Court orders
#- 1.Stay of execution of the judgment of the trial court delivered on 25 March 2024, conditional upon the appellant depositing Ksh.984,549 in a joint interest-earning account held by both parties within 30 days, failing which the stay shall automatically lapse
- 2.The appellant to file the Record of Appeal and Record of Cross-Appeal within 14 days from the date of the ruling
- 3.Parties to attend for taking hearing directions on 25 July 2024
- 4.Costs to abide by the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court (trial court), Mombasa
- MCELRC No. E566 of 2021
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 of the Civil Procedure Rules; Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AGL Kenya Limited (Formerly Bollore Transport and Logistics Kenya Limited) v Abdalla (Appeal E070 of 2024) [2024] KEELRC 2085 (KLR)", Case Analysis (2024). ELRC Appeal arising from Mombasa MCELRC No. E566 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2085/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.