Kenya Kazi Security Limited v Wanyoike (Appeal 192 of 2022) [2023] KEELRC 3304 (KLR)
The bottom line
#A Kenyan employment court halted execution of a Kshs. 693,000 judgment because the losing party was never heard, provided the money is first secured 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 application for stay of execution meets the threshold under Order 42 rule 6 of the Civil Procedure Rules
- 2.Whether substantial loss may result to the applicant if stay is not granted
- 3.Whether the application was made without unreasonable delay
- 4.What security, if any, should be given for the due performance of the decree
Key legal issues
#Whether the applicant met the Order 42 rule 6 threshold for stay of execution
Yes - the application was filed timeously, the applicant was not heard before judgment and risks substantial loss, and the respondent will suffer no prejudice if the decretal sum is secured in a joint interest-earning account
Judgment was delivered on 28th September 2022 and the application, together with the notice of appeal, was filed before expiry of the 30-day period, so there was no inordinate delay. The applicant was not heard before judgment of approximately Kshs. 693,000 was entered, making substantial loss likely. The court relied on Select Car Limited v Gold Rock Development Ltd and conditioned the stay on deposit of the decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses.
Legal principles established
#- Stay of execution pending appeal requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for the due performance of the decree is given
- A party not heard before judgment, whose application is filed timeously, may suffer substantial loss warranting stay, particularly if the respondent suffers no prejudice that cannot be remedied by costs
Court orders
#- 1.Stay of execution of the judgment delivered on 28th September 2022 and any decree issued pursuant thereto, pending the hearing and determination of the appeal
- 2.Condition that the decretal sum be deposited in a joint interest-earning account in the names of the advocates for the applicant and the respondent within 30 days of the ruling, failing which the stay lapses and execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kiambu
- MCELR No. 61 of 2018
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal); the judgment also cites 'order 19 Rule 3(1) of Civil Procedure Rule No. 10' as invoked by the respondent's preliminary objection
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.
Accordingly, the court grants stay of execution of the judgment delivered on 28th September 2022 and any decree issued pursuant therefrom pending the hearing and determination of the appeal on terms aforesaid.
The court finds that the respondent will not sufier any prejudice provided the decretal sum is deposited in a joint interest earning account in the name of the advocate for the applicant and that of the respondent within 30 days of this ruling.
The applicant was not heard before the judgement of Kshs. 693,144/= was entered against it and is likely to sufier substantial loss if stay of execution is not granted pending appeal.
Issues in the judgment
#Inconsistent decretal sums stated in the judgment
Typographical errors in dates - application stated as dated '25th October, 2922' and appeal filed '25th October 2002', when context indicates 2022
The ruling is stated to be 'DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2023' although the application is dated 6th February 2023 and a preliminary objection was filed 15/12/2022; the year of delivery may be misstated
Case title and case number of the suit before this court are not stated in the judgment extract
The respondent's preliminary objection is described as invoking 'order 19 Rule 3(1) of Civil Procedure Rule No. 10', an apparently garbled citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Kazi Security Limited v Wanyoike (Appeal 192 of 2022) [2023] KEELRC 3304 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 6th February 2023, arising from MCELR No. 61 of 2018 – Kiambu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3304/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.