DPL Festive Limited v Okuny (Appeal E070 of 2024) [2025] KEELRC 892 (KLR)
The bottom line
#A Kenyan court stopped enforcement of an employment award pending appeal, on condition the employer deposits the full decretal sum within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicant demonstrated that it would suffer substantial loss if the decretal sum was paid to the respondent, who was not in gainful employment and from whom recovery would be impossible if the appeal succeeded.
The court applied the principle in James Wangalwa v Agnes Naliaka Cheseto that substantial loss is the cornerstone of stay applications, and Kenya Shell Ltd v Kibiru that an applicant must show the loss it would suffer. The applicant deposed that execution was imminent, the respondent had no source of income, and recovery of the decretal sum would be impossible if the appeal succeeded, rendering the appeal nugatory. The court found this sufficient to establish substantial loss.
Unreasonable delay
The application, made less than two months after judgment, was made without unreasonable delay.
The court held that what amounts to unreasonable delay depends on the peculiar circumstances of each case. Judgment was delivered on 7th October 2024 and the application followed the lapse of the 14-day stay granted by the trial court, being made less than two months after judgment. Both parties were in agreement that the application was made timeously, so the timing requirement was satisfied.
Security
Although no specific security was offered, the applicant's counsel deposed that it was ready and willing to comply with any conditions the court might set, which impliedly agreed to provide adequate security.
The court adopted Mwaura Karuga t/a Limit Enterprises Ltd v Kenya Bus Services Ltd on the nature of security, noting it must achieve due performance of the ultimate decree including costs and interest. Although the applicant had not offered specific security and counsel had conceded seven days was sufficient to do so, the court held the applicant's counsel's deposition that it was ready and willing to comply with any conditions amounted to implied agreement to provide adequate security.
Legal principles established
#- The conditions for stay of execution under Order 42 Rule 6(2) are substantial loss, application without unreasonable delay, and furnishing of security for the due performance of the decree.
- What amounts to unreasonable delay depends on the peculiar circumstances of each case.
- An applicant's expressed readiness and willingness to comply with conditions set by the court can satisfy the security requirement under Order 42 Rule 6(2)(b).
Court orders
#- 1.Stay of execution of the judgment delivered on 7th October, 2024 in CMELRC Cause No. E067 of 2023 pending the hearing and determination of the intended appeal
- 2.The applicant shall deposit the entire decretal sum in an interest earning account in a reputable bank in Kenya in the joint names and managed by the advocates of the parties within 30 days
- 3.If the applicant fails to fulfil the deposit condition, the stay of execution in force shall lapse and the respondent will be at liberty to execute the decree as necessary
- 4.Parties shall bear their own costs
- On appeal from
- Chief Magistrate's Employment and Labour Relations Court (CMELRC)
- Cause No. E067 of 2023
- Jurisdiction invoked
- Order 42 Rules 6 and 32 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DPL Festive Limited v Okuny (Appeal E070 of 2024) [2025] KEELRC 892 (KLR)", Case Analysis (2025). CMELRC Cause No. E067 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/892/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.