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ELRCPartially AllowedNot stated in the excerpt (notice of motion dated March 8, 2023 in a suit judgment delivered September 29, 2022)

Mutisya v Kenya Bankers Savings & Credit Co-operative Society Limited (Cause E6534 of 2020) [2023] KEELRC 1470 (KLR)

Employment and Labour Relations Court of Kenya
16 June 2023
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed an employer to appeal and pause execution of a KES 834,346 award, but only if the money was first deposited in a joint account.

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 (Abuodha J) on a notice of motion dated March 8, 2023 in which the respondent in a termination-of-employment suit (a sacco society) sought a stay of execution of the judgment delivered on September 29, 2022, in which the claimant was awarded KES 834,346.62 for unfair and unlawful termination, and an extension of time to file a notice of appeal. Execution had been levied through Eshikoni Auctioneers by proclamation notice and warrants of attachment dated March 1, 2023, which lapsed on March 8, 2023. The claimant opposed the application, arguing it was brought some six months after judgment without explanation, that no substantial loss or security was demonstrated, and that the court lacked power to extend time for filing a notice of appeal, that power lying with the Court of Appeal. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, adopting the authorities that execution of itself does not amount to substantial loss, and held that while the applicant's explanation of internal sacco deliberations was plausible, delay in responding to a money judgment was frowned upon. Holding that extension of time lies in the judge's discretion where the court's rules are silent, borrowing from Section 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act, the court granted leave to file a notice of appeal within 30 days and granted a conditional stay: the decretal sum to be deposited in a joint interest-earning account in the names of both counsel within 30 days, failing which execution shall proceed. Costs were made to abide the outcome of 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 applicant has met the conditions for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010
  2. 2.Whether the applicant has shown substantial loss likely to result if stay is refused
  3. 3.Whether the application was made without unreasonable delay
  4. 4.Whether the court has power to and should extend time for filing a notice of appeal out of time
  5. 5.What conditions, if any, should attach to the grant of stay

Key legal issues

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01

Substantial loss as the cornerstone of stay

Holding

Mere attachment or threatened execution does not establish substantial loss; the applicant must show the appeal would be rendered nugatory or irreparable harm

Reasoning

Relying on James Wangalwa v Agnes Naliaka Chesoto and Eric Mutuma v Mercy Mbae, the court restated that execution is a lawful process and its commencement or completion is not of itself substantial loss. The applicant's claim that the claimant is a man of straw was not independently evaluated; the court instead treated the willingness to deposit the decretal sum as the operative security consideration.

p. 3
02

Unreasonable delay

Holding

The delay of about six months in bringing the application was not excused by the applicant's internal decision-making processes of the sacco

Reasoning

The applicant attributed the delay to internal discussions and a resolution of March 7, 2023 to appeal. The court accepted the explanation as plausible but frowned upon it, holding that a judgment requiring payment of money at risk of execution demands urgent attention, so the internal deliberations did not justify the inaction.

p. 4
03

Power to extend time for filing a notice of appeal

Holding

The ELRC rules lack provisions on appeals; the court, in the exercise of its discretion, may borrow from Section 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act and extend time

Reasoning

Rejecting the claimant's submission that extension of time is the preserve of the Court of Appeal under Rule 4 of the Court of Appeal Rules, 2022, the court held that in the absence of provisions in its own rules it has discretion to borrow from the Civil Procedure Act and the Appellate Jurisdiction Act, and granted leave to file the notice of appeal within 30 days.

p. 4
04

Conditions attaching to stay

Holding

Stay granted conditionally upon the applicant depositing the decretal sum in a joint interest-earning account in the names of both counsel within 30 days, failing which execution proceeds

Reasoning

The applicant offered to deposit the decretal sum of KES 834,346.62 in a joint interest-earning account. The court accepted this as adequate security and made the deposit a condition of the stay, with default permitting execution to proceed, thereby balancing the applicant's appellate rights with the claimant's right to enjoy the fruits of judgment.

p. 4

Legal principles established

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  • The three conditions for stay of execution are substantial loss, absence of unreasonable delay, and provision of security for due performance of the decree
  • Execution levied by itself does not amount to substantial loss; the applicant must show execution will irreparably affect the core of its position
  • The grant or refusal of stay under Order 42 Rule 6(2) is a judicial discretion, exercised on the stated parameters but not confined to them

Court orders

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  1. 1.Leave granted to the applicant to file a notice of appeal within 30 days of the ruling
  2. 2.Conditional stay of execution granted: the respondent/applicant to deposit the decretal sum in a joint interest-earning account in the name of counsel for both parties within 30 days of the ruling
  3. 3.In default of the deposit, execution shall proceed
  4. 4.Costs to abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(2) Civil Procedure Rules, 2010; Section 95 of the Civil Procedure Act; Section 7 of the Appellate Jurisdiction Act

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 court will grant the applicant leave to file a notice of appeal within 30 days of this ruling and further that a conditional stay of execution is hereby granted that the Respondent/applicant shall deposit the decretal sum in a joint interest earning account to be opened for that purpose in the name of Counsel for both parties within 30 days of this ruling in default, execution shall proceed. Costs shall abide the outcome of the appeal.
p. 4Final orders - conditional stay and extension of time
Substantial loss is the corner stone in an application for stay. Evidence must be tendered, either in the matter of paying damages awarded would cause dificulty to the applicants themselves, or that they would lose money if the payment is made to the respondent
p. 3Substantial loss (quoting Eric Mutuma & another v Mercy Mbae)
such discretion must not be exercised whimsically but judiciously which is why Order 42 Rule 6(2) gives broad but not exclusive parameters within which the discretion should be exercised
p. 4Judicial discretion on stay

Issues in the judgment

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minor

The judgment records the claimant's objection that the court lacks power to extend time for filing a notice of appeal, yet the court extends time; the judgment does not expressly explain why the claimant's reliance on Rule 4 of the Court of Appeal Rules, 2022 does not apply, beyond noting its own rules are silent

minor

Case title and case number are not stated anywhere in the excerpt; parties are referred to only as respondent/applicant and claimant/respondent

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, "Mutisya v Kenya Bankers Savings & Credit Co-operative Society Limited (Cause E6534 of 2020) [2023] KEELRC 1470 (KLR)", Case Analysis (2023). Not stated in the excerpt (notice of motion dated March 8, 2023 in a suit judgment delivered September 29, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1470/eng@2023-06-16

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