Spice ‘N’ Span Cleaning Services Limited v Ruth Nyaboke Manyinsa [2021] KEELRC 1499 (KLR)
The bottom line
#A Kenyan employment court refused to pause a money judgment because the employer never explained what real loss it would suffer if the winner got paid first.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution of the judgment in CMELRC No.1506 of 2019 should be granted pending the intended appeal
The application was dismissed because the applicant failed to demonstrate substantial loss; grounds of misconduct and excessive award in the draft memorandum of appeal do not establish substantive loss.
The court held that stay is discretionary and governed by Order 42 Rule 6, requiring demonstration of an appeal likely to be negated and substantial loss affecting the substratum of the appeal. Although an appeal (ELRC Appeal No.E009 of 2021) had been filed and was not contested, the applicant's Supporting Affidavit gave no particulars of the respondent's circumstances beyond confirming she was in employment, the decretal sum parameters were not stated, and the two grounds of appeal (misconduct and excessiveness) could not amount to substantive loss. Security offered could not cure this failure.
Whether stay should first have been sought in the trial court
Ordinarily stay should be sought before the trial court; the applicant's absence at delivery of judgment did not prevent it from moving the trial court for stay.
The court noted that an application for stay should ordinarily be made before the trial court. The applicant's explanation - that judgment was entered in its absence - did not excuse the failure, since absence did not stop the applicant from filing a stay application in CMELRC No.1506 of 2019. The court nonetheless considered the application under Order 42 Rule 6(1), which permits the appellate court to entertain stay where the trial court has not granted or refused it.
Legal principles established
#- An applicant for stay of execution must demonstrate that there is an appeal likely to be negated if stay is not allowed, that refusal will occasion substantial loss affecting the substratum of the appeal, and may be required to give security for due performance of the decree.
- Substantial loss is the critical condition; where the respondent is able to refund the judgment sum, the right to enjoy the fruits of the judgment should not be curtailed.
Court orders
#- 1.The application dated 27th January, 2021 is found without merit and is dismissed
- 2.Costs shall abide the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court (trial court, CMELRC)
- CMELRC No.1506 of 2019
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal); appeal referred to as ELRC Appeal No.E009 of 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Spice ‘N’ Span Cleaning Services Limited v Ruth Nyaboke Manyinsa [2021] KEELRC 1499 (KLR)", Case Analysis (2021). Notice of Motion dated 27th January, 2021 (arising from CMELRC No.1506 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1499/eng@2021-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.