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IndustrialPartially Allowed· [2014] KEIC 127 (KLR)

Musyoka v Payless Car Hire & Tours, Trading as Budget Rent-A-Car Kenya; Auctioneers (Interested Party) (Cause 436(N) of 2009) [2014] KEIC 127 (KLR)

Industrial Court (Employment and Labour Relations Court)
9 June 2014
1,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to halt payment of a judgment debt because the losing party offered no security, showed no loss, and kept filing delaying applications.

What this practically means

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Executive summary

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This interlocutory ruling of the Industrial Court at Nairobi, delivered by Nzioki Wa Makau J on 9th June 2014, determined two competing notices of motion: the Respondent's application dated 7th April 2014 seeking a temporary stay of execution pending an intended appeal against the court's refusal to reinstate its earlier notice of motion dated 26th February 2014, and the Claimant's application dated 14th April 2014 seeking assessment of costs and release of the decretal sum held in court. The Claimant opposed the stay, arguing the application was defective, an abuse of process, and that no security or tender of costs had been made; the Interested Party similarly urged dismissal with prohibitive costs, relying on Rika J's decisions on procedure and contending res judicata. The court framed three issues: security for costs, the fitness of the stay application, and release of the decretal sum. Applying the Court of Appeal's criteria in Halai & Another v Thorton & Turpin (1963) Ltd [1990] KLR 365 - sufficient cause, substantial loss and security, without unreasonable delay - the court held that the decretal sum already deposited did not constitute the security contemplated, and that the Respondent had shown no substantial loss. Noting the Respondent's serial stay applications since the January 2014 judgment had escalated costs and delayed the matter, the court dismissed the stay application with costs to the Claimant and Interested Party. Finding the Respondent not desirous of appealing, the court allowed the Claimant's application, condemned the myriad applications as an abuse of process, ordered the decretal sum released to the Claimant forthwith, and directed the Respondent to pay the costs due to the Claimant and Interested Party.

Key legal issues

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01

Whether the Respondent's application for stay of execution pending appeal met the criteria for grant

Holding

The application was dismissed because the Respondent neither furnished security nor demonstrated substantial loss, and the multiplicity of applications amounted to abuse of process

Reasoning

The court applied the three-condition test from Halai & Another v Thornton & Turpin (1963) Ltd. Security for costs is not confined to the decretal sum already deposited in court, especially given the matter's chequered history. The Respondent had made three formal and two informal applications for stay since the January 2014 judgment, escalating costs and delaying the matter. Without security tendered and without proof of substantial loss, the court's discretion in favour of the Respondent was fettered.

p. 3
02

Whether the decretal sum should be released to the Claimant

Holding

The Claimant's application was granted and the decretal sum ordered released forthwith, as the Respondent's applications were an abuse of process geared to frustrating satisfaction of the judgment debt

Reasoning

The court found the Respondent was not desirous of moving to the Court of Appeal, and that the myriad applications before it were abusive and aimed at delaying satisfaction of the judgment debt. Given the Respondent's impecuniosity concerns raised by the Claimant and the absence of any genuine appellate pursuit, the court ordered immediate release of the decretal sum and payment of costs due to the Claimant and Interested Party.

p. 3

Legal principles established

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  • An application for stay of execution pending appeal must be made timeously and must satisfy the three conditions in Halai & Another v Thornton & Turpin (1963) Ltd: sufficient cause, substantial loss and security, without unreasonable delay

Court orders

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  1. 1.Dismissal of the Respondent's Notice of Motion dated 7th April 2014 seeking stay of execution pending appeal, with costs to the Claimant and the Interested Party
  2. 2.Grant of the Claimant's Notice of Motion dated 14th April 2014
  3. 3.Release of the decretal sum to the Claimant forthwith
  4. 4.Costs due to the Claimant and Interested Party to be paid by the Respondent

Authorities

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Legislation

  • Civil Procedure RulesRule 40

Cases cited (1)

  • Halai & Another v Thorton & Turpin (1963) Ltd
    [1990] KLR 365
Jurisdiction invoked
Original employment and labour relations jurisdiction; interlocutory applications under the Court's procedure (Respondent's invocation of Rule 40 of the Civil Procedure Rules contested)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musyoka v Payless Car Hire & Tours, Trading as Budget Rent-A-Car Kenya; Auctioneers (Interested Party) (Cause 436(N) of 2009) [2014] KEIC 127 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/127/eng@2014-06-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.