Canon Aluminium Fabricators Limited v Mulwa (Employment and Labour Relations Appeal E080 of 2025) [2025] KEELRC 2160 (KLR)
The bottom line
#The Employment Court paused execution of a Kshs. 626,600 judgment pending appeal, but only after the employer deposits the full amount in court within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant would suffer substantial loss if stay is not granted
Substantial loss was established because the applicant showed a reasonable fear that the respondent could not refund the decretal sum, which the respondent failed to rebut with evidence of financial ability.
The court applied the Century Oil test: for money decrees, the financial position of both parties matters. Relying on National Industrial Credit Bank Ltd vs Aquinas Francis Wasike, once the applicant expressed a reasonable fear that the respondent could not repay, the evidential burden shifted to the respondent. The respondent gave only an undertaking, without bank statements or proof of employment or assets, so the fear stood unrebutted and substantial loss was found.
Whether the application was made without unreasonable delay
The application, filed about two months after judgment, was held to have been made without unreasonable delay.
The second Order 42 Rule 6(2) condition requires the application to be made without unreasonable delay. The court found the approximately two-month interval between judgment and the application acceptable, without further analysis of the intervening procedural steps.
Whether security for the due performance of the decree should be furnished
Security was imposed: the applicant had to deposit the entire judgment sum of Kshs. 626,600 in court within 30 days as a condition of the stay.
Guided by Michael Ntouthi Mitheu vs Kivondo Musau, the court reasoned that security protects both sides: a successful appellant must be able to recover its money, and a decree-holder must be able to realize the decree if the appeal fails. Since the appeal could be rendered nugatory if the respondent's assets were sold with no certainty of repayment, a conditional stay with full deposit struck the balance.
Legal principles established
#- 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 what resources he has.
- Where execution of a money decree is sought to be stayed, the court considers the financial position of both parties and balances the applicant's interest in preserving the appeal against the respondent's interest in enjoying the fruits of judgment.
Court orders
#- 1.Stay of execution of the Judgment and Order of the Hon. E. Riany delivered on 25th February 2025 and the resultant Warrants of Attachment dated 25th April 2025 granted pending the hearing and determination of the appeal
- 2.Stay granted on condition that the Appellant/Applicant deposits the entire judgment sum of Kshs. 626,600 in Court within 30 days of the Ruling
- 3.Costs of the application to the respondent in the cause
- 4.The appellant to file a complete record of appeal together with written submissions within 60 days
- 5.Mention on 17th September 2025 for further directions
- On appeal from
- Milimani Magistrate's Court (MCELRC)
- Milimani MCELRC No. 876 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Canon Aluminium Fabricators Limited v Mulwa (Employment and Labour Relations Appeal E080 of 2025) [2025] KEELRC 2160 (KLR)", Case Analysis (2025). Notice of Motion dated 25th April 2025 (arising from Milimani MCELRC No. 876 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2160/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.