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ELRCAllowedCMELRC Cause No. E067 of 2023 (Appeal)· [2025] KEELRC 892 (KLR)

DPL Festive Limited v Okuny (Appeal E070 of 2024) [2025] KEELRC 892 (KLR)

Not expressly stated in the judgment (delivered virtually at Kisumu; appellate jurisdiction over CMELRC Cause No. E067 of 2023)
20 March 2025
2,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling on the appellant's Notice of Motion dated 22nd October 2024, filed under Order 42 Rules 6 and 32 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution, seeking stay of execution of the judgment delivered on 7th October 2024 in CMELRC Cause No. E067 of 2023 pending an intended appeal. The applicant deposed that the 14-day stay granted by the trial court lapsed on 21st October 2024, that demand for payment followed, and that the respondent, being out of gainful employment, would be unable to refund the decretal sum if the appeal succeeded, rendering the appeal nugatory. The respondent opposed, arguing the application failed the Order 42 Rule 6(2) threshold, the applicant had been directed to furnish security but had not done so, and the application was a fishing expedition to deny the respondent the fruits of his judgment. The court framed a single issue: whether the application was merited. It applied Order 42 Rule 6(2) and the case law on substantial loss (James Wangalwa v Agnes Naliaka Cheseto; Kenya Shell Ltd v Kibiru), delay (Jaber Mohsen Ali v Priscillah Boit) and security (Mwaura Karuga v Kenya Bus Services). It found substantial loss demonstrated, delay not unreasonable, and held that counsel's deposition that the applicant was ready and willing to comply with conditions impliedly agreed to provide security. The court allowed the application on condition that the applicant deposit the entire decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses; each party to bear their own costs. The judgment was delivered virtually at Kisumu on 20th March 2025 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Substantial loss

Holding

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.

Reasoning

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.

p. 4
02

Unreasonable delay

Holding

The application, made less than two months after judgment, was made without unreasonable delay.

Reasoning

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.

p. 4
03

Security

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Parties shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 and 32; Order 42 Rule 6(2); Order 42 Rule 6(2)(b); Order 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A and 63(e)
  • Constitution of Kenya 2010Article 159; Article 159(2)(d); Article 48

Cases cited (12)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2023] eKLR
  • Kenya Shell Ltd v Kibiru & Another
    [1986] eKLR
  • Johnson Mwiruuti Mburu v Samuel Macharia Ngure
    HCCA No. 716 of 2003
  • RWW v EKW
    [2017] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    2012 eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    [2014] eKLR
  • Mwaura Karuga t/a Limit Enterprises Ltd v Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates
  • Mutahi Kiranga v Margaret Waweru & Another
    [2015] eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
  • Equity Bank Ltd v Taiga Adams Co. Ltd
    [2006] eKLR
  • Machira t/a Machira & Co. Advocates v East African Standard (No.2)
    [2002] KLR 63
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

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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, "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.