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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2312 (KLR)

Issak v University Of Nairobi (Cause E015 of 2021) [2023] KEELRC 2312 (KLR)

Employment and Labour Relations Court
29 September 2023
ANAbuodha Jorum Nelson
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to pause a judgment debt because paying it is not 'substantial loss' — Kenyan courts expect real hardship evidence, not just an appeal.

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 Jorum Nelson J) on a notice of motion dated March 17, 2023 in which the Claimant sought a stay of execution of the judgment and decree delivered by Mbaru J on January 26, 2023, pending the hearing of the application and an intended appeal to the Court of Appeal (Appeal No E015 of 2021). The application was supported by an affidavit of Bernard Njuguna, the Respondent's Registrar, who averred that it was brought without delay and that the applicant was willing to furnish security. The Appellant/Respondent opposed it, contending that it was incompetent and an abuse of process, that no substantial loss had been demonstrated, that no proclamation or attachment had occurred, and that no appeal had actually been filed. The application was disposed of by written submissions. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities on substantial loss, holding that a judgment is a debt whose enforcement cannot of itself constitute substantial loss; the applicant had not shown how paying the pending gratuity would cause substantial loss, no attachment had commenced, and the successful litigant could not be made to wait indefinitely. The application was dismissed with costs.

Key legal issues

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01

Whether the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules were satisfied

Holding

The application failed because substantial loss was not demonstrated; paying the decretal gratuity is not substantial loss and no attachment had commenced, so the Respondent should not be kept out of the fruits of his judgment

Reasoning

The court applied Order 42 Rule 6(2) as explained in Halal v Thornton & Turpin, requiring substantial loss and security. Following James Wangalwa and Kenya Shell v Kibiru, mere execution or threatened execution is not substantial loss. A judgment is a debt; paying it cannot be substantial loss. The applicant also had no appeal on file and was delaying, and the successful litigant must be allowed to enjoy the fruits of judgment.

p. 3

Legal principles established

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  • A judgment of a court of law is a debt and its enforcement per se cannot constitute substantial loss for purposes of a stay of execution under Order 42 Rule 6
  • Execution being levied or about to commence does not by itself amount to substantial loss; the applicant must show other factors that will irreparably negate the essential core of their position

Court orders

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  1. 1.The application dated March 17, 2023 seeking stay of execution is found without merit and is dismissed with costs
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (inherent jurisdiction of the trial court to grant 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, "Issak v University Of Nairobi (Cause E015 of 2021) [2023] KEELRC 2312 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2312/eng@2023-09-29

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