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ELRCDismissedNot stated in judgment· [2024] KEELRC 2625 (KLR)

Berlin Equipment Limited v Ojwang (Appeal E083 of 2024) [2024] KEELRC 2625 (KLR)

High Court of Kenya (Employment and Labour Relations Court, Mombasa)
24 October 2024
MMM. MBARŨ
1,218 words in judgment
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The bottom line

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Kenya's ELRC Mombasa refused to pause execution of a Ksh.1.3 million judgment because the employer filed late, showed no real loss, and offered no security.

What this practically means

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Executive summary

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The appellant, the losing party in Mombasa CM ELRC E439 of 2021, where judgment was delivered on 4 April 2024 awarding the respondent Ksh.1,306,941, applied by a notice of motion dated 11 July 2024 under Order 42 Rule 6 of the Civil Procedure Rules for a stay of execution pending appeal, supported by the affidavit of its human resources manager, James Otieno. The appellant argued that the decree was substantial, that it was unaware of the respondent's financial means and feared non-refund upon a successful appeal, and that the appeal had arguable grounds. The respondent opposed through grounds of opposition, contending that no security had been offered, no substantial loss was demonstrated, the application was filed after a four-month delay, and the appellant had not first approached the trial court which had jurisdiction to entertain the stay application in the first instance. M. Mbarũ J framed a single issue: whether stay of execution should issue. Applying the settled Order 42 Rule 6 conditions, the court held that the delay from April to July 2024 was unaccounted for; that mere execution does not constitute substantial loss, relying on Gianfranco Manenthi, Antoine Ndiaye and James Wangalwa; that no security for due performance was offered; and that the ordinary practice is to seek stay from the court of first instance, which the appellant never did. The application was dismissed with costs to the respondent, and hearing directions were directed to issue.

Key legal issues

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01

Conditions precedent for stay of execution under Order 42 Rule 6

Holding

Application dismissed for failure to satisfy the conditions of no delay, substantial loss and offer of security

Reasoning

The court restated the three settled factors for stay: filing without undue delay, demonstrating substantial loss, and offering security for due performance of the decree. The delay from April to July 2024 was unaccounted for; the applicant's apprehension about the respondent's ability to refund was not proof of substantial loss; and no security was offered. The court also noted the applicant never attempted to move the trial court first.

p. 3
02

Whether the applicant should have first approached the court of first instance

Holding

The ordinary practice is to seek a stay before the court that issued the orders sought to be stayed; waiting until appeal is not diligent

Reasoning

The court observed that Order 42 rule 6(1) contemplates an application to the court appealed from in the first instance, preserving the substance of the matter. The appellant made no effort to move the trial court for stay before coming to the appellate court, which weighed against the exercise of discretion in its favour.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must satisfy the conditions precedent of filing without delay, demonstrating substantial loss and offering security.
  • Mere execution or likely execution does not amount to substantial loss under Order 42 Rule 6.

Court orders

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  1. 1.Application dated 11 July 2024 dismissed with costs to the respondent
  2. 2.Record of Appeal noted as filed and hearing directions to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (and 6(1))

Cases cited (3)

  • Gianfranco Manenthi & Antonietta Farinato v Africa Merchant Assurance Company Ltd
    [2019] KEHC 7586 (KLR)
  • Antoine Ndiaye v African Virtual University
    [2015] KEHC 6783 (KLR)
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
On appeal from
Mombasa CM ELRC
E439 of 2021
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, "Berlin Equipment Limited v Ojwang (Appeal E083 of 2024) [2024] KEELRC 2625 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2625/eng@2024-10-24

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