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ELRCDismissedNot stated in the judgment

Husseini Builders Limited v Kyalo Kinyili [2021] KEELRC 801 (KLR)

Employment and Labour Relations Court
27 September 2021
773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a bid to freeze a judgment being appealed because the applicant ignored the mandatory conditions for a stay in Kenya.

What this practically means

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Executive summary

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The appellant, Sajjad Hussesin Moosajee, moved the court by application dated 11th May, 2021 under Order 51 Rule 1, Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of 3rd March, 2021 delivered by the trial court in an employment claim for unlawful termination, and further seeking that the judgment be set aside, reviewed and/or varied pending an intended appeal. The respondent, Lemmy Regau Nyawade, opposed through a replying affidavit, contending that the essentials for stay had not been demonstrated and no cogent reasons justified the orders sought. The appellant relied on a Memorandum of Appeal on three grounds, asserting that the trial court erred in finding that the employee's conduct did not justify dismissal. The court noted that the subject judgment was not attached and no Record of Appeal existed. Applying Order 42 Rule 6(1), the court held that the conditions for stay - substantial loss, absence of unreasonable delay and security - are mandatory and none was addressed in the affidavits. The court further held that the power to set aside, review or vary the trial judgment vests in the trial court unless the appeal is prosecuted to conclusion, and that moving the appellate court without showing what steps were taken to arrest the judgment was premature. The application was dismissed with costs to the respondent, the court observing that the appellant had enjoyed interim orders since May 2021 without advancing the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant satisfied the conditions for stay of execution under Order 42 Rule 6(1) of the Civil Procedure Rules
  2. 2.Whether the court could set aside, review and/or vary the judgment and decree of 3rd March 2021 pending the intended appeal

Key legal issues

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01

Whether the appellant demonstrated substantial loss, absence of unreasonable delay and security as required by Order 42 Rule 6(1) for a stay of execution

Holding

The appellant did not address the mandatory conditions; the application failed.

Reasoning

The court restated the twin conditions of Order 42 Rule 6(1): substantial loss, application without unreasonable delay, and security for due performance of the decree. On the affidavits sworn by Mr Sajjad, nothing was addressed on these provisions, which are couched in mandatory terms. The appellant also failed to attach the trial judgment or a Record of Appeal, leaving the court unable to verify whether stay had been sought and declined below.

p. 2
02

Whether the appellate court could set aside, review or vary the judgment of 3rd March, 2021

Holding

No - that power lies with the trial court unless the appeal is prosecuted and final orders issued.

Reasoning

The appellant sought to have the trial judgment set aside, reviewed or varied by the appellate court. The court held that this duty rests with the trial court; the appellate forum could not entertain such relief while the appeal remained unprosecuted. The appellant had enjoyed interim orders since May 2021 without advancing the appeal, rendering the motion premature and without merit.

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy the mandatory conditions in Order 42 Rule 6(1) - substantial loss, no unreasonable delay, and security for due performance
  • The power to set aside, review or vary a first-instance judgment vests in the trial court, not the appellate court, unless the appeal is prosecuted to conclusion
  • A court cannot grant stay where the record before it is empty of material - the applicant must show what steps were taken to arrest the impugned judgment

Court orders

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  1. 1.The application dated 19th May, 2021 (filed 11th May, 2021) is found without merit and is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Trial court (not named in the judgment)
Jurisdiction invoked
Order 51 Rule 1, Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules (appeal-side application for stay of execution)

Relief refused

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Stay of execution of the judgment and decree dated 3rd March, 2021 pending the intended appeal

The appellant failed to satisfy the mandatory requirements of Order 42 Rule 6(1), including demonstrating substantial loss, absence of unreasonable delay and offering security

p. 2

Setting aside, review and/or variation of the judgment entered on 3rd March, 2021

That duty is vested in the trial court unless the appeal is prosecuted and final orders issued

p. 2

Costs

Costs of the application awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To move this court at this instance without clarification or any submissions as to what action was taken to arrest the impugned judgement of 3rd March, 2021 is to move this court prematurely.
p. 2Prematurity of stay application without record of proceedings below
On the records before court, to issue the orders sought would be to grope into the darkness without any material evidence. the application is materially premature and without merit.
p. 2Court cannot grant stay without material evidence
Accordingly, application dated 19th May, 2021 is hereby found without merit and is hereby dismissed with costs to the respondent.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The application is described as dated 11th May, 2021 at the outset but dismissed as 'application dated 19th May, 2021' in the final orders

minor

The subject judgment of 3rd March, 2021 was not attached and no Record of Appeal exists, so the underlying decree could not be verified

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, "Husseini Builders Limited v Kyalo Kinyili [2021] KEELRC 801 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/801/eng@2021-09-27

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