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ELRCAllowedNot stated in the judgment· [2023] KEELRC 2051 (KLR)

Macharia Njeru & Elijah M Njeru t/a Macharia-Mwangi & Njeru Advocates v Kimani (Appeal E043 of 2023) [2023] KEELRC 2051 (KLR)

High Court of Kenya
28 July 2023
ANABUODHA J. N.
1,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court paused collection of a Kshs. 675,000 award until an appeal is heard, provided the money is kept in a joint interest-earning account.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th April 2023, the applicants sought a restraint on execution of the judgment and decree in MC ELRC Number E.1397 of 2020 delivered on 9th March 2023, pending the hearing and determination of their appeal. The dispute arose from an employment relationship in which the respondent obtained judgment of Kshs. 135,000 for three months' salary in lieu of notice, Kshs. 540,000 as compensation for unlawful dismissal for the remainder of a fixed-term contract, and costs. The applicants, who had been granted 30 days' stay expiring 9th April 2023, filed a memorandum of appeal dated 3rd April 2023. The respondent opposed, arguing the motion was incompetent as it sought injunctions rather than stay orders under Order 42 Rule 6 of the Civil Procedure Rules, that no substantial loss was demonstrated, and that he was a man of means able to refund the decretal sum if the appeal succeeded. The court considered the guiding principles in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, an arguable appeal, and security. Noting the applicant's willingness to furnish security, the court ordered the decretal sum to be deposited in a joint interest-earning account in the names of both advocates within 30 days, and directed that costs abide the outcome of the appeal.

Key legal issues

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01

Conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The court found the principles in Order 42 Rule 6(2) applicable, noted the applicant's willingness to furnish security, and granted a conditional stay by ordering the decretal sum be deposited in a joint interest-earning account.

Reasoning

The court restated the statutory conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security. It observed that the applicant had indicated willingness to abide by any order on security. On that basis, rather than refusing the application, the court crafted a conditional order securing the decretal sum pending the appeal, balancing the interests of both parties.

p. 3

Legal principles established

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  • In granting a stay of execution the court exercises judicial discretion, guided principally by substantial loss, absence of undue delay, an arguable appeal and the furnishing of security.

Court orders

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  1. 1.The applicant to deposit the decretal sum in a joint interest-earning account in the name of both advocates within 30 days of the ruling
  2. 2.Costs to abide the outcome of the appeal
On appeal from
MC ELRC
E.1397 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Macharia Njeru & Elijah M Njeru t/a Macharia-Mwangi & Njeru Advocates v Kimani (Appeal E043 of 2023) [2023] KEELRC 2051 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2051/eng@2023-07-28

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