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ELRCDismissedApplication dated 21st February 2021 in ELRC No. 1759 of 2015

Sarah Njeri Ngugi v First Choice Tours and Travel Limited [2021] KEELRC 1447 (KLR)

Employment and Labour Relations Court
23 March 2021
MMM. Mbaru
885 words in judgment
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The bottom line

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A Kenyan court threw out a company's bid to delay paying a judgment because it waited ten months, filed no appeal, and offered no security.

What this practically means

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Executive summary

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The respondent, First Choice Tours and Travel Limited, moved the court by notice of motion dated 21st February 2021 under Order 42 Rule 6 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking a stay of execution of the judgment and decree delivered on 15th April 2020 in ELRC No. 1759 of 2015, in which judgment was entered against it in the sum of Kshs. 793,647.61 plus costs. The bill of costs had been taxed at Kshs. 192,545 and the decree was ripe for execution. The respondent, through the supporting affidavit of its director Nazareno Ngare, argued that it had filed a Notice of Appeal, intended to prepare a record of appeal, had an arguable appeal and would suffer irreparable loss if stay was denied. The claimant, through the replying affidavit of his advocate Upendo Allan Ignacious, opposed the application as an abuse of process: the Notice of Appeal was filed three months after judgment, the application over ten months later, no substantial loss was demonstrated and no security was offered. The court found the delay in filing the Notice of Appeal unaddressed, noted that no appeal or even a draft memorandum of appeal was on record, and held that the respondent had not demonstrated substantial loss nor offered security, leaving the claimant's legitimate expectation that the judgment would not be frustrated. The application was dismissed with costs to the claimant.

Questions the Court framed

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

  1. 1.Whether the respondent had made the application for stay of execution without unreasonable delay
  2. 2.Whether the respondent demonstrated substantial loss it would suffer if stay was not granted
  3. 3.Whether security for the due performance of the decree had been offered
  4. 4.Whether stay of execution pending appeal should issue

Key legal issues

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Whether the application for stay of execution pending appeal met the threshold under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application failed: there was unexplained delay, no appeal on record, no demonstration of substantial loss and no security offered.

Reasoning

The Notice of Appeal was filed on 2nd July 2020, three months after judgment, and the stay application only on 21st February 2021, over ten months after judgment, with the delay unaddressed. No appeal had been filed and no draft memorandum of appeal was attached. The respondent did not demonstrate the loss it would suffer and offered no security for the due performance of the decree, frustrating the claimant's legitimate expectation that the judgment would not be frustrated.

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree
  • Stay of execution must serve a legitimate purpose and must not be a ploy to stall the orders of the court

Court orders

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  1. 1.Application dated 21st February 2021 dismissed
  2. 2.Costs to the claimant

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Stay of execution of the judgment and decree delivered on 15th April 2020 pending hearing of the respondent's appeal

Delay of over ten months in filing the application; no appeal or draft memorandum filed; substantial loss not demonstrated; no security offered

p. 2

Costs

costs to the claimant

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.

the delay obvious in filing the instant application; without any appeal as noted in the orders sought, there being no sufficient cause established for the grant of the orders sought and without any security offered for the due performance of the judgement, the court finds no merit in the instant application
p. 2disposition - dismissal of stay application
Accordingly, application dated 21st February, 2021 is hereby dismissed. costs to the claimant.
p. 2final orders
Primarily, a stay of execution should be granted for a given purpose. It ought not to be for an empty or ploy effort to stall the orders of the court.
p. 2purpose of stay of execution

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, "Sarah Njeri Ngugi v First Choice Tours and Travel Limited [2021] KEELRC 1447 (KLR)", Case Analysis (2021). Application dated 21st February 2021 in ELRC No. 1759 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1447/eng@2021-03-23

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