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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 2851 (KLR)

Voks Fashions Limited v Baraza (Employment and Labour Relations Appeal E006 of 2024) [2024] KEELRC 2851 (KLR)

High Court of Kenya
18 November 2024
2,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stayed execution of a judgment only on condition the appellant deposits the decretal amount in court within 30 days.

What this practically means

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Executive summary

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This was an application by the appellant for stay of execution of the judgment and decree in Milimani CMEL Cause No. 196 of 2022 pending an appeal against the ruling of Hon. Lucy Ambasi (CM) delivered on 1st December 2023. The applicant also sought release of motor vehicle KDB 757C, which the respondent's auctioneers attached on 22nd February 2024. The respondent filed a replying affidavit and a notice of preliminary objection contending that the appeal, filed on 9th January 2024, was time-barred under section 79G of the Civil Procedure Act and that no leave having been sought, there was no competent appeal to clothe the Court with jurisdiction. The Court rejected the preliminary objection, holding that under Order 50 Rule 4 of the Civil Procedure Rules the period between 21st December and 13th January is omitted from computation of time, so the appeal filed on 9th January 2024 was within time. On the merits, the Court found that a proclamation notice had been served and that the applicant was not candid, having earlier relied on such notices. Triable issues were raised, and applying Butt v Rent Restriction Tribunal and Order 42 Rule 6, the Court found substantial loss demonstrated and the delay not inordinate, but held that security was a mandatory condition that could not be defeated by allegations of an irregular judgment. The Court granted a conditional stay of execution, requiring the decretal amount to be deposited in Court within 30 days, failing which the stay lapses, and ordered release of the motor vehicle on payment of storage and auctioneer fees.

Key legal issues

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01

Timeliness of the appeal under section 79G of the Civil Procedure Act

Holding

The appeal filed on 9th January 2024 was within time because the period from 21st December to 13th January is excluded under Order 50 Rule 4

Reasoning

The ruling was delivered on 1st December 2023. Section 79G requires appeals from subordinate courts to be filed within 30 days. Order 50 Rule 4 omits the period between 21st December and 13th January from computation of time for doing any act under the Rules. Applying this provision, the filing on 9th January 2024 fell within the statutory window, defeating the preliminary objection.

p. 4
02

Service of proclamation notice before attachment

Holding

On a balance of probabilities a proclamation notice was served and the applicant refused to sign it; the applicant was not candid with the Court

Reasoning

The Court found a proclamation notice existed (VCK-1) and believed the respondent's account that the applicant refused to sign. The applicant had relied on an earlier proclamation notice in a prior affidavit, contradicting his claim that no proclamation was served, showing lack of candour.

p. 4
03

Conditions for stay of execution under Order 42 Rule 6

Holding

Substantial loss was demonstrated (value of the attached motor vehicle), delay was not inordinate, but security was a mandatory condition; stay granted conditionally on deposit of the decretal amount within 30 days

Reasoning

The Court applied Butt v Rent Restriction Tribunal and Order 42 Rule 6(2), balancing the interests of the decree holder and the applicant. The applicant demonstrated risk of substantial loss; the delay was excused by the Order 50 Rule 4 computation. However, allegations of irregular judgment could not displace the security requirement.

p. 4
04

Jurisdiction of the Magistrate's Court raised only in submissions

Holding

Submissions are not pleadings; the issue could not be entertained as it was neither a ground of appeal nor in the application

Reasoning

Although counsel raised the magistrate court's jurisdiction in written submissions, the Court held that submissions are not pleadings and treated the submission as unfounded, refusing to determine an issue not properly before it.

p. 4

Legal principles established

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  • By virtue of Order 50 Rule 4 of the Civil Procedure Rules, the period between 21st December and 13th January (both inclusive) is omitted from computation of time for filing appeals
  • An irregularity of the lower court judgment cannot be used to defeat the mandatory security condition for stay of execution

Court orders

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  1. 1.Order of stay of execution of Judgment and Decree in Milimani CMEL Cause No. 196 of 2022 of 29th June 2023 pending hearing and determination of the appeal against the ruling of Hon. Lucy Ambasi (CM) delivered on 1st December 2023, on condition that the decretal amount be deposited in Court within 30 days
  2. 2.Stay to lapse if security of the decretal amount is not deposited as ordered
  3. 3.Motor vehicle registration number KDB 717C be released to the Applicant on payment of storage fees, if any, and auctioneer fees
  4. 4.Mention on 25th November 2024 for directions on the appeal
On appeal from
Magistrate's Court, Milimani
Milimani CMEL Cause No. 196 of 2022
Jurisdiction invoked
Section 79G of the Civil Procedure Act and 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, "Voks Fashions Limited v Baraza (Employment and Labour Relations Appeal E006 of 2024) [2024] KEELRC 2851 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2851/eng@2024-11-18

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