Kema Investment Limited v Oricho (Appeal E176 of 2023) [2023] KEELRC 3106 (KLR)
The bottom line
#The Employment Court refused to pause a Kshs 131,967 judgment because the appellant offered no real evidence the money couldn't be refunded if the appeal succeeded.
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 threshold in Order 42 Rule 6(2) for stay of execution pending appeal, namely substantial loss, absence of unreasonable delay, and provision of security
Key legal issues
#Whether substantial loss was demonstrated to justify stay of execution pending appeal
The application failed; the Applicant's assertion that the Respondent could not refund the decretal sum was not backed by sufficient material, and the decretal sum was not substantial
The court found the Respondent's material too sketchy to gauge whether the appeal was arguable. On substantial loss, the decretal sum of Kshs 131,967 was held not to be substantial, and the Applicant's material did not persuade the court that the Respondent would be unable to refund the sum if the appeal succeeded. The court adopted the National Industrial Credit Bank principle that a general fear of non-recovery is insufficient without supporting material.
Legal principles established
#- It is not enough for a stay applicant to assert generally that the decretal sum would not be recovered; the evidential burden shifts to the Respondent only if the assertion is backed by sufficient material
Court orders
#- 1.The application dated 18th September 2023 is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrate's Court (employment and labour relations)
- CMEL No. 210 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules 2010 on appeal from the trial court
Relief refused
#Stay of execution of the judgment and orders made on 25th August 2023 in CMEL No. 210 of 2020 (Milimani) pending the hearing and determination of the appeal
The application did not meet the legal threshold for a grant of stay of execution pending appeal; the material showing inability to refund the decretal sum was insufficient
Costs
The application was dismissed with costs to the Respondent.
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.
Applicants in matters stay of execution pending appeal should take heed, it is not enough to assert generally the fear that the sum of the decree would not be recovered as and when required to, upon the success of the appeal.
By reason of the foregoing premises, I come to an inescapable conclusion that the Applicant’s application hasn’t met the legal threshold for a grant of stay of execution orders pending appeal. The application is hereby dismissed with costs.
It is so ordered.
Issues in the judgment
#The case number and title of the appeal before this Court are not stated in the judgment; only the trial court case (CMEL No. 210 of 2020, Milimani) is identified
The judgment inconsistently attributes substantial loss, first to the Applicant in the submissions narrative and later describing the Respondent as contending it will suffer substantial loss
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kema Investment Limited v Oricho (Appeal E176 of 2023) [2023] KEELRC 3106 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3106/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.