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ELRCAllowedEldoret ELRC Appeal (application dated 16th October, 2024)· [2025] KEELRC 1132 (KLR)

Ken Knit Kenya Ltd v Nandwa (Appeal E033 of 2024) [2025] KEELRC 1132 (KLR)

Employment and Labour Relations Court
4 April 2025
MOM. Onyango
2,569 words in judgment
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The bottom line

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The ELRC in Eldoret paused collection of a Kshs. 1.43 million award against Ken Knit Kenya Ltd, but only if the company deposits the full amount in a joint interest-earning account within 30 days.

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 at Eldoret (M. Onyango, J) on an application dated 16th October 2024 by Ken Knit Kenya Ltd, the appellant in an intended appeal against the judgment of Hon. Cherono Kesse, PM delivered on 1st October 2024 in Eldoret ELRC CMCC No. E91B of 2020, in which the respondent, a former employee, was awarded Kshs. 1,431,101 plus costs. The applicant sought stay of execution pending hearing of the application and of the appeal, invoking sections 3 and 3A of the Civil Procedure Act and Orders 42 rule 6 and 51 rule 1 of the Civil Procedure Rules. The respondent opposed, arguing the appeal was frivolous, filed only to delay, and that a money decree cannot be rendered nugatory. The applicant argued it could not recover the decretal sum from the respondent, whom it alleged had no known source of income, and relied on authorities placing the evidential burden on a respondent claiming means. The court identified a single issue: whether stay of execution should be granted. Applying Order 42 Rule 6(2), it found the application brought without unreasonable delay, the appeal not frivolous, and the respondent unable to substantiate his claim of employment with DPL Festive Ltd, producing neither appointment letter nor pay slip. Stay of execution was granted pending the appeal, conditional on the appellant depositing the decretal sum in a joint interest-earning account in the names of both counsel within 30 days. Costs of the application were to be in the appeal.

Key legal issues

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01

Whether the applicant satisfied the Order 42 Rule 6(2) conditions for stay of execution pending appeal

Holding

Stay granted conditionally on deposit of the decretal sum in a joint interest-earning account within 30 days

Reasoning

The court applied the three prerequisites of substantial loss, no unreasonable delay and security. The application was lodged expeditiously within the 30-day stay granted by the trial court. The respondent claimed he obtained employment after leaving the appellant's service but produced no letter of appointment or pay slip, so the court could not ascertain his ability to refund the decretal sum. The appeal was found not frivolous, and security was imposed to ensure due performance of the decree.

p. 5

Legal principles established

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  • Once an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show his resources.
  • Stay of execution preserves the status quo pending appeal so a successful appeal is not rendered nugatory, balanced against a litigant's right to enjoy the fruits of judgment.
  • Where conditional stay is granted for a money decree, the whole decretal sum should be deposited in court or in a joint interest-earning account.

Court orders

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  1. 1.Stay of execution of the judgment of Hon. Cherono Kesse, PM dated and delivered on 1st October, 2024 in Eldoret ELRC CMCC No. E91B of 2020 pending hearing and determination of the appeal
  2. 2.The stay is conditional upon the Appellant depositing the decretal sum in a joint interest earning account in the names of counsel for both parties within 30 days
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Civil Procedure Actsections 3 & 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (8)

  • National Industrial Credit Bank Limited v Aquinas Francos Wasike & Another (UR)
    Nairobi Civil Application No. 238 of 2005
  • Ishmael Kagunyi Tande v Housing Finance Company of Kenya Ltd
    [2005] eKLR
  • Kenya Kazi Security Services Limited v Kenya National Private Security Workers Union
    [2013] eKLR
  • Housing Finance Company of Kenya v Sharok Kher Mohammed Ali Hirji and Another
    [2015] eKLR
  • James Finlay (K) Ltd v Jared Ontwori Mogere
    HCCA No. 40 of 2009
  • RWW v EKW
    [2019] eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR
  • Antoine Ndiaye v African Virtual University
    (2015) eKLR
On appeal from
Chief Magistrate's Court (ELRC), Eldoret
ELRC CMCC No. E91B of 2020
Jurisdiction invoked
Sections 3 & 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil 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, "Ken Knit Kenya Ltd v Nandwa (Appeal E033 of 2024) [2025] KEELRC 1132 (KLR)", Case Analysis (2025). Eldoret ELRC Appeal (application dated 16th October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1132/eng@2025-04-04

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