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ELRCPartially AllowedNairobi C.A No. E311 of 2023 (stay application dated 14th February, 2024 arising from ELRC Award of 30th June 2022)· [2024] KEELRC 2289 (KLR)

Matseshe v Kenya Institute of Management (Cause 303 of 2017) [2024] KEELRC 2289 (KLR)

Employment and Labour Relations Court
25 September 2024
2,212 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed the Kenya Institute of Management's delayed bid to pause enforcement of an award, but only if it deposits the full amount within 30 days.

What this practically means

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Executive summary

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Kenya Institute of Management, the judgment debtor in an Employment and Labour Relations Court award delivered on 30th June 2022 in favour of John Matseshe, applied by notice of motion dated 14th February 2024 for a stay of execution pending its appeal, Nairobi C.A No. E311 of 2023 (Kenya Institute of Management v John Matseshe) in the Court of Appeal. It invoked Article 162(2) and 164(3) of the Constitution and sections 12(3) and 17 of the Industrial Court Act, alleging that execution would render the appeal nugatory and that Matseshe might be unable to refund the decretal sum, and offered to deposit Kshs 300,000 as security citing COVID-19 effects on its business. Matseshe opposed, arguing the application was an afterthought filed over 20 months after judgment, only after he demanded payment on 26th January 2024; that filing a notice of appeal confers no automatic stay; and that no cogent evidence of substantial loss or inability to refund was tendered. The court, sitting as ABUODHA NELSON JORUM, Presiding Judge-Appeals Division, framed the sole issue as whether the Order 42 Rule 6(2) conditions were met. It found the approximately 20-month delay unreasonable and insufficiently explained, and noted that mere execution does not constitute substantial loss. Nonetheless, balancing the parties' rights and the risk of the appeal being rendered nugatory, it allowed the application on condition that the applicant deposit the full decretal sum in court within 30 days, failing which the stay would stand vacated.

Key legal issues

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01

Whether the application for stay of execution pending appeal satisfied the conditions in Order 42 Rule 6(2)

Holding

Stay granted but conditioned on deposit of the decretal sum in court within 30 days, because although the delay was inordinate and unexplained, the court balanced that against the right not to render the appeal nugatory

Reasoning

The court set out the three requirements under Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security. It found the approximately 20-month delay unreasonable and not sufficiently explained. On substantial loss, it relied on authority that execution is a lawful process and does not by itself amount to substantial loss, but accepted that the pending Court of Appeal appeal risked being rendered nugatory. Performing a balancing act between the respondent's right to the fruits of judgment and the applicant's prospects on appeal, it granted stay conditional on a full deposit of the decretal sum as security.

p. 5

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; stay is granted only on satisfaction of the Order 42 Rule 6(2) conditions
  • Where an appeal is continuing in the Court of Appeal, stay may be allowed to avoid rendering the appeal nugatory, but on conditions

Court orders

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  1. 1.Stay of execution of the Award delivered on 30th June 2022 granted pending hearing and determination of the appeal, on condition that the Applicant deposits the decretal sum in Court within 30 days of the ruling
  2. 2.Failure to deposit the decretal sum within 30 days, the stay orders shall stand vacated
On appeal from
Court of Appeal
Nairobi C.A No. E311 of 2023 - Kenya Institute of Management v John Matseshe
Jurisdiction invoked
Article 162(2) and 164(3) of the Constitution; Section 12(3)(i) and (viii), 17(1) & 2 of the Industrial Court Act 2011; Rule 16 of the Industrial Court Rules; Order 42 Rule 6(2) 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, "Matseshe v Kenya Institute of Management (Cause 303 of 2017) [2024] KEELRC 2289 (KLR)", Case Analysis (2024). Nairobi C.A No. E311 of 2023 (stay application dated 14th February, 2024 arising from ELRC Award of 30th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2289/eng@2024-09-25

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