Scott Bowerbank Day v Victory Farms Limited (Employment and Labour Relations Cause E181 of 2022) [2025] KEELRC 1842 (KLR)

The decree was a money decree of USD 238,352. Relying on Century Oil Trading and National Industrial Credit Bank v Wasike, the court held that the financial position of both parties is relevant, and that once an applicant reasonably fears non-refundability, the burden shifts to the decree holder to show his resources. The claimant, a resident of Zambia and US citizen with no known Kenyan assets, had not shown ability to repay, so substantial loss was demonstrated.

Order 42 Rule 6(2)(b) is mandatory. The applicant relied on status quo instead of offering security, despite having had ample opportunity since a temporary stay issued after the 31 January 2025 judgment. The court adopted the reasoning in Michael Ntouthi Mitheu v Kivondo Musau on why security is required, and the authorities relied on by the respondent holding the security condition to be mandatory. Absent security, the application was a decoy to delay the claimant's enjoyment of the judgment.

Although the applicant advanced extensive draft grounds of appeal attacking the findings on the management incentive, redundancy, relocation allowance, severance pay and compensation for unfair termination, the court held that as the trial court it could only consider the factors in Order 42 Rule 6(2); questions of arguability belong to the appellate court on similar applications.