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ELRCPartially AllowedNot stated in the judgment text (application dated 14th June, 2021; related appeal from Mavoko CMEL No. 1 of 2019)· [2021] KEELRC 15 (KLR)

Edmor Steel Millers Limited v Abel Shikanda Mutsoli [2021] KEELRC 15 (KLR)

Employment and Labour Relations Court
20 December 2021
MMM. Mbaru
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer won only a conditional pause on paying a Ksh.427,045 judgment, because it never showed it would suffer substantial loss if the money were paid out.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) on an application dated 14th June, 2021 seeking stay of execution of the judgment delivered on 15th April, 2021 in Mavoko CMEL No. 1 of 2019, in which the respondent was awarded Ksh.427,045 against the appellant employer. The application, supported by affidavits of Laban Waigwa, the appellant's human resource manager, was brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, on grounds that the appellant intended to appeal, that proclamation and warrants of attachment had issued, and that the appellant was willing to deposit security. The respondent, through Lemmy Regau Nyawade, opposed the application, relying on James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, arguing that the appellant had not demonstrated substantial loss or arguable grounds and had not complied with Order 42. The court framed a single issue: whether stay of execution should be allowed pending the hearing of the appeal. It applied the three Order 42 Rule 6 conditions and, following Wangalwa, found that execution by itself does not amount to substantial loss, and that the appellant had not demonstrated the substantial loss it would suffer. Nevertheless, in the interests of justice, and because the appeal had clear grounds, the court granted a conditional stay: the decretal sum of Ksh.427,045 to be deposited in a joint interest-earning account of both parties' advocates within 30 days, failing which the stay lapses; if the respondent does not cooperate, the appellant to deposit the sum in court on the 31st day. Delivered on 20th December, 2021.

Key legal issues

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01

Whether stay of execution should be granted pending the hearing of the appeal

Holding

Conditional stay of execution granted, conditioned on deposit of the decretal sum in a joint interest-earning account of the parties' advocates within 30 days.

Reasoning

The court applied the Order 42 Rule 6 criteria. Following James Wangalwa & another v Agnes Naliaka Cheseto, mere initiation or likelihood of execution does not amount to substantial loss, and the appellant failed to demonstrate what substantial loss would be incurred. However, in the interests of justice, the appeal with clear grounds should be heard first, and a conditional stay would secure the subject judgment pending appeal.

p. 2

Legal principles established

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  • An applicant under Order 42 Rule 6 seeking stay of execution must demonstrate substantial loss, file the application without unreasonable delay, and offer security as the court orders.

Court orders

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  1. 1.Application dated 14th June, 2021 allowed on condition that the decretal sum of Ksh.427,045 is paid into a joint interest-earning account held by the advocates of both parties within the next 30 calendar days, failing which the stay lapses
  2. 2.In the event the respondent does not cooperate, the appellant shall deposit the same sum in court on the 31st day from the date of the order

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
On appeal from
Principal Magistrates' Court, Mavoko
Mavoko CMEL No. 1 of 2019
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Edmor Steel Millers Limited v Abel Shikanda Mutsoli [2021] KEELRC 15 (KLR)", Case Analysis (2021). Not stated in the judgment text (application dated 14th June, 2021; related appeal from Mavoko CMEL No. 1 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/15/eng@2021-12-20

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