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ELRCDismissed· [2025] KEELRC 937 (KLR)

Mosongo v Pathologists Lancet Kenya (Cause E341 of 2022) [2025] KEELRC 937 (KLR)

Employment and Labour Relations Court
26 March 2025
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause a Kshs 5.9 million judgment because the losing party had not yet filed any appeal, warning against speculative stay applications.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (D. K. Njagi Marete J) on a notice of motion dated 13 December 2024 seeking stay of execution of the court's judgment of 27 November 2024, by which a decree of Kshs. 5,877,227.00 was awarded to the claimant. The applicant, the judgment debtor, intended to appeal and asked for stay pending the intended appeal, offering security and contending that paying the decree would divert budgeted resources from essential laboratory pathology services and cripple her business. The respondent opposed, arguing the application was premature and speculative because no appeal had been filed, that no execution was imminent (execution being barred during the court vacation until 13 January 2025 under Order 50 Rule 4), that filing a bill of costs is not execution, and that restitution would be an adequate remedy. He relied on Kenya Shell Limited v Benjamin Karuga Kibiru & Another on the necessity of demonstrating substantial loss. The applicant relied on Order 42 Rule 6 of the Civil Procedure Rules and Rule 73(2) of the ELRC Procedure Rules, and on Butt v Rent Restriction Tribunal. The court found the application experimental, premature and speculative, noting no appeal was on record and no evidence of irreparable loss or of the appeal being rendered nugatory was offered. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether stay of execution can be granted pending an intended (not yet filed) appeal

Holding

No; such an application is premature and experimental, and stay would persist indefinitely without a definitive timeframe

Reasoning

The court observed it is unusual to seek stay where no appeal is on record. The applicant relied only on a draft memorandum of appeal, which the respondent argued reflected poor bona fides and exposed the decree holder to perpetual uncertainty. The court found the application speculative and unfair to the decree holder, who is entitled to the fruits of judgment.

p. 5
02

Whether the applicant demonstrated substantial loss

Holding

No; the applicant offered no sufficient evidence of irreparable loss or that the appeal would be rendered nugatory

Reasoning

Applying Kenya Shell Limited v Benjamin Karuga Kibiru & Another, substantial loss is the cornerstone for granting stay. The applicant's claim that paying Kshs. 5,877,227.00 would divert budgeted resources from essential medical services was held insufficient; there was no evidence of irreparable loss or of the appeal being rendered nugatory if execution proceeded.

p. 5

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, unreasonable delay absent, and security; the fruits of judgment must not be denied to a successful litigant on speculation

Court orders

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  1. 1.Application dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 50 Rule 4
  • ELRC Procedure RulesRule 73(2)

Cases cited (2)

  • Butt vs. Rent Restriction Tribunal
    [1979]
  • Kenya Shell Limited V Benjamin Karuga Kibiru & Another
    [1986] KLR 410
On appeal from
Employment and Labour Relations Court (judgment of D. K. Njagi Marete J, 27 November 2024)
not stated in judgment
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010, read with Rule 73(2) of the ELRC 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, "Mosongo v Pathologists Lancet Kenya (Cause E341 of 2022) [2025] KEELRC 937 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/937/eng@2025-03-26

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