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ELRCAllowedNot stated in the judgment· [2025] KEELRC 1122 (KLR)

Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2025] KEELRC 1122 (KLR)

Employment and Labour Relations Court
4 April 2025
3,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kakamega stopped enforcement of a judgment pending appeal, but only because the losing party agreed to deposit the full amount owed in court.

What this practically means

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Executive summary

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The applicant, through a notice of motion dated 9th December 2024 supported by the affidavit of its director Fredrick Otieno Onyango, sought a stay of execution of the judgment and decree of the Employment and Labour Relations Court (Hon. Lady Justice Keli, J) delivered on 18th September 2024, pending an intended appeal to the Court of Appeal (Kisumu Civil Appeal No. E299 of 2024), arguing that the 30-day stay granted in the judgment would lapse before the appeal was heard, that the respondent lacked means to refund the decretal sum of over Kshs 175,227 plus costs, and that the applicant was ready to provide security. The respondent opposed, contending the application was incompetent, defective, filed after unexplained delay, unsupported by a draft memorandum of appeal, and that a certificate of taxed costs was final and binding under Section 51(2) of the Advocates Act. The court framed a single issue: whether the applicant deserved stay of execution pending appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and the Butt v Rent Restriction Tribunal principles, the court found substantial loss may occur since the respondent filed no affidavit of means; that there was no inordinate delay (notice of appeal filed six days after judgment; the application about two months and twenty-one days later, with no execution commenced); and that the applicant was willing to furnish security. The merits and competency of the intended appeal were held to be matters for the Court of Appeal, and the taxed costs certificate could not be divorced from the stay proceedings. The application was allowed: stay of execution granted on condition that the applicant deposit the entire decretal sum plus costs in court within 30 days; costs to abide the appeal.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The court held the conditions were satisfied: substantial loss may occur, there was no inordinate delay, and the applicant was willing to provide security.

Reasoning

The court applied Order 42 Rule 6(2) and the overriding objective in Sections 1A and 1B of the Civil Procedure Act. The respondent filed no affidavit of means showing capacity to refund the decretal sum, so the applicant's claim of substantial loss and the risk of the appeal being rendered nugatory stood unrebuted. The notice of appeal was lodged six days after judgment and the application was filed about two months and twenty-one days after judgment, which the court found was not inordinate delay, and no execution proceedings had commenced in the interim. The applicant offered security.

p. 6
02

Whether the certificate of taxed costs can be severed from the judgment sought to be stayed

Holding

The certificate of costs flows from the judgment and cannot be divorced from the stay of execution proceedings.

Reasoning

The respondent argued, relying on Section 51(2) of the Advocates Act, that the unchallenged certificate of costs was final and binding. The court rejected the attempt to treat the taxed costs separately, holding that the certificate arises from the very judgment whose execution is sought to be stayed.

p. 6
03

Whether the court could consider the merits and competency of the intended appeal

Holding

The competency and merits of the intended appeal are matters for the Court of Appeal, not this court.

Reasoning

The respondent argued that no memorandum of appeal was attached and that the appeal was incompetent for want of service of the letter requesting proceedings. The court declined to engage with the merits, holding that such questions fall within the purview of the Court of Appeal where the appeal, Kisumu Civil Appeal No. E299 of 2024, was lodged.

p. 6

Legal principles established

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  • Execution is a lawful process and does not by itself amount to substantial loss; the applicant must show the execution will irreparably affect the essential core of its success on appeal.
  • Substantial loss is the cornerstone of a stay application; stay preserves the status quo so the appeal is not rendered nugatory.
  • The power to grant a stay is discretionary and should be exercised so as not to prevent an appeal or render it nugatory.

Court orders

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  1. 1.An order for stay of execution be and is hereby issued
  2. 2.The applicant/appellant shall deposit the entire decretal sum plus costs in court, within 30 days of this ruling
  3. 3.Costs of the application to abide with the outcome of the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 17 & 20
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 21(1), 44, 45, 47, 54, 58 & 68
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure ActSections 1A and 1B
  • Court of Appeal RulesRules 42(1), 75, 82(1), 83, 84(1) & 84(2)
  • Advocates ActSection 51(2)

Cases cited (12)

  • Antoine Ndiaye v African Virtual University
    (2015) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • G.N. Muema P/A (Sic) Mt. View Maternity & Nursing Home v Miriam Bishar & Another
    (2018) eKLR
  • Butt V Rent Restriction Tribunal
    (1979) eKLR; (1982) KLR 417
  • Mutua Kilonzo v Kioko David Machakos
    (2008) eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    (1986) eKLR
  • Machira t/a Machira & Co. Advocates v East Africa Standard (No.2)
    (2002) KLR 63
  • Caneland Ltd & 2 others v Delphis Bank Ltd
    (2000) eKLR
  • Mabel Kibore V National Oil Corporation of Kenya Limited
    (2019) eKLR
  • S. Gichuki Waigwa v Nina Marie Ltd
    [2005] KEHC 2830 (KLR)
  • Francis Kabaa V Nancy Wambui & another
    [1997] eKLR
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
On appeal from
Employment and Labour Relations Court (judgment of Hon. Lady Justice Keli, J)
null
Jurisdiction invoked
Sections 3, 17 & 20 of the Employment and Labour Relations Court Act; Rules 21(1), 44, 45, 47, 54, 58 & 68 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Order 42 Rule 6 of the Civil Procedure Rules, 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, "Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2025] KEELRC 1122 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1122/eng@2025-04-04

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