Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2025] KEELRC 1765 (KLR)

Krystalline Salt Limited v Nyakioga (Employment and Labour Relations Appeal E023 of 2024) [2025] KEELRC 1765 (KLR)

Employment and Labour Relations Court
30 April 2025
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out a request to pause a judgment because the applicant never showed, with evidence, how it would suffer real loss if the pause wasn't granted.

What this practically means

#

Executive summary

#
The Appellant/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 13 November 2024 seeking a stay of execution of a judgment delivered by Hon. James Ongondo on 30 October 2024 in the sum of KShs. 502,593 with interest and costs. The Applicant argued that the judgment was delivered without notice in the absence of both parties, that it only learned of the judgment on 13 November 2024 when it attended the registry, and that it was ready to deposit the decretal sum in a joint interest-earning account as security. The Respondent opposed, contending that substantial loss was not demonstrated, that the deponent lacked authority to swear the supporting affidavit, that nugatory-appeal claims were unsupported, and that he should enjoy the fruits of his judgment. The court, Ocharo Kebira J, framed the application against Order 42 of the Civil Procedure Rules, whose applicability in the ELRC is sanctioned by the Employment and Labour Relations Court (Procedure) Rules, 2024. It held that the Order 42 conditions - substantial loss, absence of undue delay, and security - are conjunctive. While it accepted the application was filed without undue delay, it found the assertion of substantial loss bald, speculative and unsupported by affidavit evidence, holding that submissions cannot substitute for evidence. The court distinguished National Industrial Credit Bank Ltd v Aquinas Francis Wasike, holding the refund-capacity burden arises only if the affidavit alleges the decree-holder is a man of no means. The application was dismissed on 30 April 2025, with no express costs order.

Key legal issues

#
01

Whether substantial loss was demonstrated

Holding

The Applicant made only a bald, speculative assertion of substantial loss without details, and the application fails on this ground.

Reasoning

The court held that the supporting affidavit's assertion that the Applicant would suffer substantial loss was 'so dry, without details regarding how, why and to what extent'. The explanation offered in counsel's submissions could not substitute for affidavit evidence, and the deponent could not authenticate the correctness of the averments. Since the Order 42 conditions are conjunctive, failure on this single condition doomed the application regardless of timeliness.

p. 3
02

Whether the application was filed without undue delay

Holding

The application was filed timely without undue delay, the day after the Applicant learned of the judgment, an averment unchallenged by the Respondent.

Reasoning

The Applicant explained that judgment was delivered without notice and that they learned of it on 13 November 2024, filing the application the same day. The Respondent did not challenge this, so the court found no difficulty concluding the application was timely. Delay was thus not the ground of failure; substantial loss was.

p. 3
03

Whether the Respondent's ability to refund the decretal sum had to be shown

Holding

The Applicant needed to have stated in the supporting affidavit that the Respondent was a man of no means incapable of refunding the decretal sum; absent that, no burden lay on the Respondent.

Reasoning

Counsel submitted that the Respondent had not shown ability to refund the decretal sum if the appeal succeeded. The court held that such a burden would only arise if the affidavit alleged the Respondent was a man of no means. Since no such averment was made, the National Industrial Credit Bank case relied on was inapplicable.

p. 4

Legal principles established

#
  • The conditions for stay of execution pending appeal under Order 42 - substantial loss, no undue delay, and security - are conjunctive, not disjunctive; failure to prove one is fatal.
  • Submissions by parties will not be a substitute for evidence.
  • A deponent must demonstrate authority and knowledge of the matters deposed to; an affidavit must not be generalised, speculative or vague.

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 13th November 2024 seeking stay of execution of the judgment delivered by Hon. James Ongondo on 30th October 2024 is dismissed

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 19
  • Employment and Labour Relations Court [Procedure] Rules, 2024Not specified (sanctioning applicability of Order 42)

Cases cited (2)

  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike and Another
    [2006] eKLR
  • Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
On appeal from
Lower court (magistrates' court) - not specified
Not stated
Jurisdiction invoked
Appellate/stay jurisdiction under Order 42 of the Civil Procedure Rules, applicability sanctioned by the Employment and Labour Relations Court (Procedure) Rules, 2024

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Krystalline Salt Limited v Nyakioga (Employment and Labour Relations Appeal E023 of 2024) [2025] KEELRC 1765 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1765/eng@2025-04-30

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