Ndung’u v Geoffrey Kagwanja t/a Hotel Patron (Employment and Labour Relations Cause E072 of 2021) [2024] KEMC 131 (KLR)
The bottom line
#A Nakuru court refused to pause execution of a KSh 2.38 million judgment because the judgment debtor proved no substantial loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicant failed to demonstrate the substantial loss he would suffer; mere assertions that the Respondent may be unable to repay the decretal sum are insufficient
The court reviewed authority establishing that execution is a lawful process and does not by itself amount to substantial loss; the applicant must show the execution will irreparably affect the essential core of his position as successful party in the appeal. The Applicant only asserted the Respondent might be unable to repay if the appeal succeeds, without evidence of how the appeal would be rendered nugatory.
Unreasonable delay
The application was filed timeously and was not defeated by inordinate delay
The court accepted that inordinate delay is ascertainable from the surrounding circumstances of each case. The judgment was delivered on 14th March 2024 and the application filed on 28th May 2024 following institution of the appeal; the court found the application was filed in time and thus satisfied this condition.
Security
The Applicant furnished no security; a bare averment that he is a man of means and willing to pay if the appeal fails does not satisfy the requirement
Order 42 Rule 6(2)(b) requires the applicant to furnish such security as the court orders for due performance of the decree. Citing Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd, the court held the winner of litigation should not be denied execution of the decree. The Applicant's affidavit offered only assurances without furnishing security.
Arguability of the appeal
Whether the appeal is meritorious is a matter for the appellate court, not the trial court
Although the Applicant asserted the appeal bears a high success percentage, the court concurred with the Respondent that the appellate court is best suited to determine the merits of the appeal. The memorandum of appeal dated 28th March 2024 was noted, but no view was taken on its arguability beyond that observation.
Legal principles established
#- The conditions for grant of stay of execution under Order 42 Rule 6 must all be satisfied collectively, not individually
- The purpose of a stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while weighing the successful litigant's right to the fruits of judgment
Court orders
#- 1.The Application be and is hereby dismissed for want of merit
- 2.Costs to abide the outcome of the appeal
- On appeal from
- Employment & Labour Relations Court
- E017 of 2024
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 (this court being the court appealed from)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u v Geoffrey Kagwanja t/a Hotel Patron (Employment and Labour Relations Cause E072 of 2021) [2024] KEMC 131 (KLR)", Case Analysis (2024). Not stated in the ruling (application filed 28th May 2024 in the suit whose judgment was delivered on 14th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/131/eng@2024-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.