Krystalline Salt Limited v Nyakioga (Employment and Labour Relations Appeal E023 of 2024) [2025] KEELRC 1765 (KLR)
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
#Key legal issues
#Whether substantial loss was demonstrated
The Applicant made only a bald, speculative assertion of substantial loss without details, and the application fails on this ground.
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.
Whether the application was filed without undue delay
The application was filed timely without undue delay, the day after the Applicant learned of the judgment, an averment unchallenged by the Respondent.
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.
Whether the Respondent's ability to refund the decretal sum had to be shown
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.
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.
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.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
- 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.