Frodak Kenya Limited v Makunda (Appeal E005 of 2023) [2025] KEELRC 1122 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules
The court held the conditions were satisfied: substantial loss may occur, there was no inordinate delay, and the applicant was willing to provide security.
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.
Whether the certificate of taxed costs can be severed from the judgment sought to be stayed
The certificate of costs flows from the judgment and cannot be divorced from the stay of execution proceedings.
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.
Whether the court could consider the merits and competency of the intended appeal
The competency and merits of the intended appeal are matters for the Court of Appeal, not this court.
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.
Legal principles established
#- 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
#- 1.An order for stay of execution be and is hereby issued
- 2.The applicant/appellant shall deposit the entire decretal sum plus costs in court, within 30 days of this ruling
- 3.Costs of the application to abide with the outcome of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.