Kennedy Omondi v Charles New Nyamote [2018] KEELRC 356 (KLR)
The bottom line
#A Kenyan employment court paused execution of a judgment until appeal, but only if the losing party deposits the money awarded into a joint bank account.
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 Application is res judicata
- 2.Whether the Application is grounded on the wrong provisions
- 3.Whether the Respondent/Applicant is entitled to the Orders sought
Key legal issues
#Res judicata
The application was not res judicata as the earlier application sought stay pending setting aside of an ex-parte judgment, not stay pending appeal
Both applications sought stay of execution, but the first was grounded on Order 22 Rules 51 and 52 and sought stay pending determination of setting aside of ex-parte proceedings, while the present application is grounded on Order 42 Rule 6 seeking stay pending appeal. The principles differ: setting aside considers sufficient cause, delay and adequate defence, whereas stay pending appeal considers arguability, nugatory effect and security.
Wrong procedural provision
The application was properly brought under Order 42 Rule 6; any procedural mischaracterisation does not prejudice the claimant nor deny the right of appeal
The court found the application was actually brought under Order 42(6) and not Order 22 Rules 51 and 52 as the claimant asserted. Order 42 Rule 6 provides for stay pending appeal while Order 22 Rule 22 concerns stay by a court other than the one issuing the decree. A procedural issue causing no prejudice cannot defeat a constitutional right of appeal.
Entitlement to stay pending appeal
Stay granted conditionally on deposit of the decretal sum in a joint interest-earning account
The applicant demonstrated substantial loss by showing the claimant had not demonstrated ability to refund the decretal sum should the appeal succeed. The evidential burden shifted to the claimant, who did not discharge it. The applicant offered security, which suffices, the court determining its form. Stay was granted conditionally.
Legal principles established
#- An application for stay pending appeal is not res judicata of an earlier application for stay pending setting aside of ex-parte judgment, since different principles apply
- Substantial loss is the cornerstone for granting a stay of execution pending appeal; where an applicant alleges the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent
Court orders
#- 1.Stay of execution of judgment and decree in this suit granted pending appeal
- 2.Stay conditional upon the applicant depositing the sum of Kshs.1,353,137 in a joint interest earning account held jointly by counsel for the parties within 30 days from date of the ruling
- 3.No orders for costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 17 of the Employment and Labour Relations (Procedure) Rules 2016 and Order 42 rule 6 of the Civil Procedure Rules
Relief refused
#Costs of the application
The court declined to award costs, making no orders for costs
Costs
There shall be no orders for costs
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.
Stay of execution of judgment and decree in this suit is granted pending appeal.
This is conditional upon the applicant depositing the sum of Kshs.1,353,137 in a joint interest earning account held jointly by counsel for the parties within 30 days from date of this ruling.
The application herein is thus not res judicata.
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay.
Issues in the judgment
#The date of the Ruling is inconsistently stated - grounds say the Ruling was dated 20th July 2018 and delivered on 10th August 2018, while the replying affidavit and later passages refer to it as delivered on 10th August 2018 and the parties 'agree that the Ruling delivered on 20th July 2018'
The applicant's name is spelt inconsistently - 'Charles New Nyamote' in the supporting affidavit and 'Charles New Nyamode' in the further affidavit
The judgment is titled 'Determination' and the final orders reference 'from date of this ruling' although this is a judgment on the notice of motion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Omondi v Charles New Nyamote [2018] KEELRC 356 (KLR)", Case Analysis (2018). Notice of Motion dated 27th August 2018 (ELRC suit, ex-parte judgment delivered 19th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/356/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.