Gordon Otieno Odundo v Kenya Hospital Association T/A The Nairobi Hospital
The bottom line
#The Nairobi Hospital won a stay of a Kshs.72.9 million judgment, but only if it deposits the full amount in a joint interest-earning account within 45 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's application for stay of execution of the judgment and decree pending appeal should issue
- 2.Whether the application was made without unreasonable delay
- 3.Whether the Claimant has demonstrated ability to refund the decretal sum if the intended appeal succeeds
- 4.On what terms, if any, stay should issue
Key legal issues
#Whether a valid appeal was on record
A notice of appeal filed within time suffices; the court declined to examine arguability of the intended appeal
Order 42 Rule 6(4) deems an appeal filed once notice of appeal is given. The Notice of Appeal dated 25th October 2025 was undisputed and filed within time. The court held that delving into the merits or arguability of the intended appeal would amount to sitting on appeal over its own judgment, a matter reserved for the Court of Appeal.
Whether substantial loss was demonstrated
Substantial loss established because the Claimant did not demonstrate ability to refund the decretal sum
Relying on Charles Mutethia Mutea and Grace Wangechi Gikuju, the court noted that once an applicant raises doubt about the respondent's financial status, the evidential burden shifts to the respondent to show capacity to refund. The Claimant exhibited no evidence of his income or asset base, so the apprehension of substantial loss was well founded.
Security for due performance
Stay granted conditionally on deposit of the full judgment sum in a joint interest-earning account
The Applicant had offered no security, but the court balanced the parties' interests by imposing a condition: deposit of Kshs.72,904,264.92 in an interest-earning account jointly held by both parties' advocates within 45 days, failing which the stay lapses automatically. This secures the decree while preserving the appeal.
Legal principles established
#- An appeal is deemed filed upon lodgement of a notice of appeal for purposes of Order 42 Rule 6
- A court granting stay must secure the sanctity of the decree by ordering security for due performance
- Stay discretion must be exercised so the appeal, if successful, is not rendered nugatory
Court orders
#- 1.Stay of execution of the Court's decree and further proceedings pending hearing and determination of the intended appeal, on condition that the Respondent/Applicant deposits the judgment sum (Kshs.72,904,264.92) in an interest-earning bank account held jointly by Advocates for both parties within forty-five (45) days of the Ruling
- 2.Failure to comply with the conditional stay order, the stay order shall automatically lapse
- 3.Costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13 of the Employment and Labour Relations Court Act; Rule 73(2) of the ELRC (Procedure) Rules 2024 read with Order 42 Rule 6 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There will be a stay of execution of this Court's decree and further proceedings herein pending hearing and determination of the intended appeal, but on condition that the Respondent/Applicant deposits the Judgment sum (Kshs.72,904,264.92) in an interest earning bank account to be held in a reputable bank jointly by Advocates for both parties herein, within forty-five (45) days of this Ruling.
Failure to comply with the foregoing conditional stay order, the stay order herein issued shall automatically lapse.
Costs of the application shall abide the outcome of the intended appeal.
if the person in whose favour a Judgment has been passed is capable of refunding the decretal sum, then courts will normally not stay execution.
once the Applicant raises doubt about the Respondent's financial status, the legal burden remains on the Applicant but the evidential burden would then have shifted to the Respondent to show that he would be in a position to refund the decretal sum
Issues in the judgment
#Application date inconsistency
Affidavit date precedes application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gordon Otieno Odundo v Kenya Hospital Association T/A The Nairobi Hospital", Case Analysis (2026). Cause No. E548 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2674/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.