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ELRCDismissedNakuru C.M. E&LRC Cause Number E055 of 2023 (application dated 16th July 2024)· [2025] KEELRC 327 (KLR)

Bedi Investments Limited v Ositu (Appeal E024 of 2024) [2025] KEELRC 327 (KLR)

Employment and Labour Relations Court
12 February 2025
JRJames Rika
539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court declined to pause payment of a judgment, ruling that simply being short of money does not count as 'substantial loss' for a stay pending appeal.

What this practically means

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Executive summary

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The Appellant, the judgment-debtor in Nakuru C.M. E&LRC Cause Number E055 of 2023, filed an application dated 16th July 2024 seeking a stay of execution of the judgment and decree of the trial court delivered on 6th March 2024, pending appeal. The application was supported by affidavits of the Appellant's Human Resource Officer, Peris Waithera. The Appellant had earlier sought a stay from the trial court, which was declined in a ruling dated 10th July 2024 on the ground that the Appellant had failed to establish that it would suffer any loss, substantial or otherwise, if the decretal sum was paid. The Respondent filed a replying affidavit sworn by her counsel, Nigel Ouma Mwallo, restating that finding. The Appellant relied on a letter from its bank, BOI, showing that its account was overdrawn, and asserted that it had sustained financial losses during the Covid-19 pandemic. The parties agreed to have the application determined on affidavits and submissions. The court found that the Appellant had presented nothing to establish substantial loss if execution proceeded; an overdrawn account letter is hardly evidence of substantial loss, and no financial statements were exhibited. Applying Century Oil Trading Company v Kenya Shell Limited, the court held that substantial loss is not the ordinary financial loss a judgment-debtor incurs in paying a decree, and that the Appellant had not shown the Respondent would be unable to refund the decretal amount if the appeal succeeded. The application was declined with no order on costs, on 12th February 2025.

Key legal issues

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01

Whether substantial loss was demonstrated to justify a stay of execution pending appeal

Holding

The application was declined because the Appellant did not establish substantial loss.

Reasoning

The Appellant relied on a bank letter showing an overdrawn account and asserted Covid-19 losses, but produced no financial statements, current or from the Covid-19 period. The court held that an overdrawn account letter is hardly evidence of substantial loss. Applying Century Oil Trading Company v Kenya Shell Limited, the court held that the inability of the Respondent to refund the decretal amount had not been demonstrated, and that ordinary financial loss from paying a decree is not substantial loss.

p. 2

Legal principles established

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  • Substantial loss for stay of execution is not the normal financial loss a judgment-debtor incurs in paying the decretal sum; the inability of the decree-holder to refund must be established.
  • In assessing substantial loss the court must consider the position of both the appellant and the respondent.

Court orders

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  1. 1.The application filed by the Appellant dated 16th July 2024 is declined.
  2. 2.No order on the costs.
On appeal from
Trial Court (Chief Magistrate's Employment and Labour Relations Court, Nakuru)
Nakuru C.M. E&LRC Cause Number E055 of 2023
Jurisdiction invoked
Appellate jurisdiction over subordinate court employment and labour relations cause; application for stay of execution pending appeal

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, "Bedi Investments Limited v Ositu (Appeal E024 of 2024) [2025] KEELRC 327 (KLR)", Case Analysis (2025). Nakuru C.M. E&LRC Cause Number E055 of 2023 (application dated 16th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/327/eng@2025-02-12

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