Mijengo Investments Limited v Kemunto (Miscellaneous Application E008 of 2024) [2024] KEELRC 1140 (KLR)
The bottom line
#A Nakuru employment court paused execution of a Kshs 232,114 judgment, but only because the company agreed to deposit the full amount in court within 30 days.
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 demonstrated that the orders of stay of execution pending appeal are merited
- 2.Whether the Applicant has demonstrated that the order for grant of leave to file an appeal out of time is merited
- 3.Who bears the costs of the present application
Key legal issues
#Whether stay of execution pending appeal should be granted
Stay granted on condition that the entire decretal sum is deposited in court within 30 days, default of which execution issues
The court considered the parties' averments and the Order 42 rule 6(2) principles canvassed in submissions: substantial loss, delay and security. Balancing the applicant's claim that execution against its tools of trade would cripple a going concern against the respondent's right to the fruits of judgment, the court conditioned stay on deposit of the whole decretal sum, thereby securing the successful litigant while preserving the appeal.
Whether leave to appeal out of time was necessary
The prayer for extension of time was refused as superfluous because a Notice of Appeal was filed on the day of the judgment
The court noted the judgment was delivered on 29th November 2023 and the applicant filed a Notice of Appeal the same day. Since an appeal was already lodged, all that remained was for the applicant to compile and file the record. Extension of time under section 79G was therefore unnecessary, rendering that limb of the application redundant.
Legal principles established
#- Stay of execution pending appeal may be granted on conditions, including deposit of the decretal sum in court, to secure the decree while preserving the appeal
Court orders
#- 1.The application for leave to file the appeal out of time declined as superfluous since a Notice of Appeal was filed on the day of judgment
- 2.Stay of execution granted conditionally: the entire decretal sum to be deposited in court within 30 days
- 3.In default of the deposit, execution to issue
- 4.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (Nakuru)
- Nakuru MCELRC 215 of 2022
- Jurisdiction invoked
- Sections 1A, 1B, 63(e) of the Civil Procedure Act and Order 42 Rule 6 & 2 of the Civil Procedure Rules, 2010; section 79G of the Civil Procedure Act as read with Order 50 Rule 5 of the Civil Procedure Rules
Relief refused
#Leave to appeal out of time
A Notice of Appeal was lodged on the very day of judgment, so extension of time was unnecessary
Unconditional stay of execution
Stay was granted only on condition that the whole decretal sum be deposited in court within 30 days, failing which execution would issue
Costs
Costs to abide the outcome of the appeal.
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 application to file an appeal out of time is therefore superfiuous. That said and done what remains is the condition of stay which I set and direct that the entire decretal sum be deposited in court within 30 days. In default execution to issue. Costs to abide the outcome of the appeal.
The fact of filing their Notice of Appeal in as appeal in itself and all that the applicant needs to do is proceed to file the record and proceed with the appeal.
The applicant contends that he intends to appeal the judgement of the lower court and seek orders for extension of time to file an appeal and also stay pending the said appeal.
Issues in the judgment
#The judgment states the trial judgment was delivered on 29th November 2023 in one place but on 18th December 2023 in the Respondent's affidavit, an internal inconsistency left unresolved
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mijengo Investments Limited v Kemunto (Miscellaneous Application E008 of 2024) [2024] KEELRC 1140 (KLR)", Case Analysis (2024). Nakuru MCELRC 215 of 2022 (application for stay of execution and extension of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1140/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.