Changalwa v Unga Limited (Cause 259 of 2017) [2025] KEELRC 3748 (KLR)
The bottom line
#A Kenyan employment court paused execution of a judgment, but only because the losing party will deposit the full amount into a joint account within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Claimant adduced no evidence of financial means, so inability to refund the decretal sum was not disproved; Applicant likely to suffer substantial loss
The Claimant asserted he could refund the decretal sum but produced no evidence of means. Applying National Industrial Credit Bank v Wasike, once the appellant expresses reasonable fear of non-refund, the evidential burden shifts to the respondent to show his resources. Failing that proof, the Applicant risks being unable to recover the decretal sum if the appeal succeeds.
Security for due performance
Applicant's willingness to provide security satisfied the requirement under Order 42 Rule 6(2)
The court noted that security ensures due performance of the decree and deters appeals filed solely to delay enjoyment of judgment. The Applicant had stated willingness to provide security as the court may order, satisfying the second condition for stay.
Purpose of stay of execution
Stay preserves the status quo pending appeal while balancing the successful litigant's right to the fruits of judgment
Citing RWW v EKW and Butt v Rent Restriction Tribunal, the court framed stay as a discretionary balancing exercise: safeguarding the appellant's undoubted right of appeal so the appeal is not rendered nugatory, while not depriving a successful litigant of the fruits of judgment or causing uncompensated prejudice.
Legal principles established
#- Once an appellant expresses a reasonable fear that a respondent will be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has
- Stay of execution requires proof of substantial loss, absence of unreasonable delay and security for due performance of the decree
Court orders
#- 1.The application dated 10th June 2025 is allowed
- 2.The Applicant to deposit the entire decretal sum in a joint interest earning account in the names of counsel for both parties within 30 days
- 3.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Articles 22, 48, 50(1) and 159 of the Constitution of Kenya, 2010; section 13 of the Employment and Labour Relations Court Act; Rule 73(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024; Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Changalwa v Unga Limited (Cause 259 of 2017) [2025] KEELRC 3748 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3748/eng@2025-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.