Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNotice of Motion dated 25th October 2024 (arising from an Appeal dismissed by Judgment delivered on 18th October 2024)· [2025] KEELRC 414 (KLR)

Radar Security Limited v Obiele (Employment and Labour Relations Appeal E189 of 2022) [2025] KEELRC 414 (KLR)

Employment and Labour Relations Court (indicated by subject matter; judgment does not state the court name)
14 February 2025
SRSTELLA RUTTO
1,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cannot order a stay of execution against a negative order that requires no party to do anything, so Radar Security's application was dismissed.

What this practically means

#

Executive summary

#
Radar Security Limited, which had lost an appeal before this Court by a judgment delivered on 18th October 2024 in which it was struck out as fatally incompetent (the appeal had challenged an award of Kshs 712,966.20 to the Respondent for salary underpayments, unpaid rest days, leave and overtime), filed a Notice of Appeal and a Notice of Motion dated 25th October 2024. The Applicant, through its Human Resources Manager Beryl Odhiambo, sought a stay of execution of the 18th October 2024 judgment pending appeal to the Court of Appeal, together with an injunction restraining the Respondent's agents and auctioneers from attaching or selling the Applicant's goods, alleging the appeal had been dismissed on a technicality, that a substantial appeal with high chances of success had been preferred, and that execution would cause irreparable loss. The Respondent, Kennedy Khatete Obiele, opposed the application, contending that the Notice of Appeal was served out of time, that the intended appeal merely sought to delay execution, and that the Applicant had not satisfied the Order 42 Rule 6 conditions or demonstrated substantial loss. The court, in a ruling by Stella Rutto J, held that the 18th October 2024 judgment striking out the appeal was a negative order, ordering no party to do or refrain from doing anything, and was therefore incapable of execution and incapable of being stayed, applying Western College of Arts and Applied Sciences v EP Oranga and Kanwal Sarjit Singh Dhiman v Keshavji Jivrah Shah. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Whether a stay of execution can issue against a negative order

Holding

The court cannot stay a negative order; a judgment that struck out an appeal and did not order any party to do or refrain from doing anything is incapable of execution

Reasoning

The court examined the effect of its own judgment of 18th October 2024, in which it struck out the Applicant's appeal with costs for being fatally incompetent. Applying the reasoning in Western College of Arts and Applied Sciences v EP Oranga and Kanwal Sarjit Singh Dhiman v Keshavji Jivrah Shah, it held that because the judgment ordered neither party to do anything, refrain from doing anything, or pay any sum (save costs), it was a negative order incapable of execution and thus incapable of being stayed.

p. 3

Legal principles established

#
  • A stay of execution cannot issue in respect of a negative order - an order that does not require any party to do anything, refrain from doing anything, or pay any sum, save possibly in respect of costs

Court orders

#
  1. 1.The Application dated 25th October 2024 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Western College of Arts and Applied Sciences vs EP Oranga & 3 Others
    [1976] eKLR
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jivrah Shah
    [2008] eKLR
On appeal from
Senior Resident Magistrates Court at Milimani Commercial Courts
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Radar Security Limited v Obiele (Employment and Labour Relations Appeal E189 of 2022) [2025] KEELRC 414 (KLR)", Case Analysis (2025). Notice of Motion dated 25th October 2024 (arising from an Appeal dismissed by Judgment delivered on 18th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/414/eng@2025-02-14

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