Mutisya v Kenya Bankers Savings & Credit Co-operative Society Limited (Cause E6534 of 2020) [2023] KEELRC 1470 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the applicant has shown substantial loss likely to result if stay is refused
- 3.Whether the application was made without unreasonable delay
- 4.Whether the court has power to and should extend time for filing a notice of appeal out of time
- 5.What conditions, if any, should attach to the grant of stay
Key legal issues
#Substantial loss as the cornerstone of stay
Mere attachment or threatened execution does not establish substantial loss; the applicant must show the appeal would be rendered nugatory or irreparable harm
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.
Unreasonable delay
The delay of about six months in bringing the application was not excused by the applicant's internal decision-making processes of the sacco
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.
Power to extend time for filing a notice of appeal
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
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.
Conditions attaching to stay
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
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.
Legal principles established
#- 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
#- 1.Leave granted to the applicant to file a notice of appeal within 30 days of the ruling
- 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.In default of the deposit, execution shall proceed
- 4.Costs to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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
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
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.