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ELRCDismissedNot stated in judgment· [2024] KEELRC 2092 (KLR)

Kilonzo (Suing as the administrator and persona representative of the Estate of Benjamin Kyalo Masila) v Albeity Logistics Limited & another (Miscellaneous Application E004 of 2024) [2024] KEELRC 2092 (KLR)

Employment and Labour Relations Court
25 July 2024
1,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a company's bid to delay paying work injury compensation because it showed no real evidence of loss and no draft appeal.

What this practically means

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Executive summary

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The respondents, Alberity Logistics Limited and Feisal Islam, moved the court for a stay of execution of a ruling delivered on 9 May 2024 in which they were ordered to pay the applicant Ksh.982,080 as work injury compensation assessed by the Director of Occupational Health and Safety, payable within 30 days, with costs and interest accruing thereafter. They relied on Order 42 Rule 6 of the Civil Procedure Rules, asserting an arguable intended appeal to the Court of Appeal, citing conflicting precedents on enforcement of work injury claims, and offering a bank guarantee as security. The applicant opposed, arguing there was no draft memorandum of appeal, no security initially offered, and no demonstration of substantial loss on what is a money decree. The court restated the principles for stay: the applicant must show substantial loss, apply without delay, and offer security, balancing the appellant's right against the decree holder's entitlement to the fruits of judgment. It held that a mere intention to appeal, evidenced only by a Notice of Appeal, is insufficient; the intention must be actualised, for instance through a draft memorandum of appeal, following the Court of Appeal's decision in Cabinet Secretary Ministry of Health v Aura. Mere assertion of inability to repay the decretal sum was rejected as insufficient, applying Kenya Shell Ltd v Kibiru. The application was dismissed with costs to the applicant.

Key legal issues

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01

Conditions for granting a stay of execution pending an intended appeal under Order 42 Rule 6

Holding

The applicant must demonstrate substantial loss, apply without delay, and offer security; the purpose is to preserve the subject matter while ensuring the decree holder is not deprived of the fruits of judgment.

Reasoning

The court restated that stay preserves the subject matter so a right of appeal is not rendered nugatory, but this must be balanced against a litigant's right to enjoy the fruits of judgment, and no party should suffer prejudice that cannot be compensated by costs.

p. 3
02

Whether a mere intention to appeal, evidenced only by a Notice of Appeal, suffices for a stay

Holding

It does not; the intention must be actualised through a draft memorandum of appeal or demonstrated in the body of the application.

Reasoning

The court held that a stay pending an intended appeal is discretionary and requires proof that the intention to appeal is actualised. Relying on Cabinet Secretary Ministry of Health v Aura, the absence of a draft memorandum, or its demonstration in the application, defeats the application.

p. 3
03

Whether inability to repay the decretal sum suffices as substantial loss

Holding

Mere assertion that the respondent will be unable to repay the decretal sum is insufficient; substantial loss must be evidenced.

Reasoning

Applying Kenya Shell Ltd v Kibiru, the court found no evidence of substantial loss, either difficulty in paying damages or genuine risk of losing the money if payment was made. A valid court order should only be stayed for cogent reasons.

p. 3

Legal principles established

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  • An application for stay of execution pending an intended appeal must demonstrate substantial loss, which is the cornerstone for granting a stay.
  • An intention to appeal must be actualised, for instance through a draft memorandum of appeal, before a stay pending intended appeal may be granted.

Court orders

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  1. 1.The application dated 8 February 2024 was found without merit and dismissed
  2. 2.Costs awarded to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (12)

  • Tshusho Capital Kenya Limited v Anthony Mbuthia Kiburi & Another
    [2019] eKLR
  • Richard Akama Nyambane v Maitoro Spa
  • Jared Ingling Obuya v Handicap International
  • Ruth Wambui Mwangi & Another v Alfarah Wholesalers Limited
    [2017] eKLR
  • Geonet Communications Limited v Safaricom Plc
    [2021] eKLR
  • James Wagalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Saidi Mohamed v Diamond Industries Limited
    [2018] eKLR
  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR
  • Cabinet Secretary Ministry of Health v Aura & 13 others
    (Civil Application E583 of 2023) [2024] KECA 2 (KLR)
  • Commissioner of Customs v Anil Doshi
    {2017} eKLR
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Kenya Shell Ltd v Kibiru & Another
    [1986] KLR
Jurisdiction invoked
Order 42 Rule 6 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, "Kilonzo (Suing as the administrator and persona representative of the Estate of Benjamin Kyalo Masila) v Albeity Logistics Limited & another (Miscellaneous Application E004 of 2024) [2024] KEELRC 2092 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2092/eng@2024-07-25

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