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ELRCAllowedNakuru High Court Appeal arising from Nakuru CMELRC Case No. E318 of 2021 (case number not stated in judgment)

Elian Security Limited v Chebet (Employment and Labour Relations Appeal E003 of 2024) [2024] KEELRC 1318 (KLR)

High Court of Kenya
28 May 2024
HWHellen Wasilwa
2,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The High Court paused execution of an employment award, but only because the employer agreed to deposit the full decretal sum within 30 days.

What this practically means

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Executive summary

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This is a ruling of the High Court at Nakuru (Wasilwa J) on the Appellant's Notice of Motion dated 17th January 2024 seeking stay of execution of the judgment of the subordinate court (Nakuru CMELRC Case No. E318 of 2021, E. Soita, delivered 19th December 2023) awarding the Respondent damages for unlawful termination, termination without notice, underpayment and leave allowance, and ordering payment of the decretal sum. The Applicant, through its manager Eliud Gachoka, argued that the appeal had been filed expeditiously, that it raised triable issues, that substantial loss would ensue as the Respondent could not refund the decretal sum if the appeal succeeded, and that no prejudice would be suffered. The Respondent opposed, contending the application was an afterthought, an abuse of process, and that the Applicant had failed to demonstrate actual substantial loss or offer any definite security, relying on authorities including Kenya Shell Ltd v Kigibu and Machira v East African Standard. Both parties filed written submissions. The court noted that the memorandum of appeal was filed within the requisite period and, to avoid a miscarriage of justice that would render the appeal nugatory, allowed the application on condition that the entire decretal sum be deposited in court within 30 days, failing which execution may issue. All authorities cited were relied on by the parties; the court adopted none expressly. No express costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution pending appeal should be allowed
  2. 2.Whether the application is merited
  3. 3.Who shall bear the costs of the application

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules were satisfied

Holding

The application was allowed, the court being satisfied that the appeal was filed within the requisite period and that a stay was needed to avoid the appeal being rendered nugatory, subject to security by way of deposit of the decretal sum.

Reasoning

The court examined the averments and submissions of both parties. It noted that a memorandum of appeal dated 17/1/2024 had been filed and that the appeal was lodged within the requisite period under section 79G of the Civil Procedure Act. Weighing the risk of a miscarriage of justice rendering the appeal nugatory against the Respondent's entitlement to the fruits of judgment, the court granted a stay but conditioned it on the entire decretal sum being deposited in court within 30 days, with execution to issue in default.

p. 5

Legal principles established

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  • Stay of execution pending appeal may be granted conditioned on deposit of the entire decretal sum in court within a fixed period, failing which execution may issue.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 19th December 2023 and all consequential orders granted pending the hearing and determination of the intended appeal, on condition that the entire decretal sum be deposited in court within 30 days
  2. 2.In default of the deposit, execution may issue

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nakuru (Employment and Labour Relations - CMELRC)
CMELRC Case No. E318 of 2021
Jurisdiction invoked
Appellate jurisdiction of the High Court over appeals from subordinate courts under section 79G of the Civil Procedure Act; motion brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In order to avoid a miscarriage of justice that may lead to the appeal being rendered nugatory, I allow the application for stay on the ground that the entire decretal sum is deposited in court within 30 days. In default execution may issue.
p. 5Final orders - stay of execution granted conditionally on deposit of decretal sum
Evidently, that the three (3) prerequisite conditions set out in the said Order 42 Rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and” connotes that all the three conditions must be met simultaneously.
p. 4Order 42 Rule 6(2) conditions cumulative (Applicant's submission)

Issues in the judgment

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material

The judgment states two different decretal sums: Kshs. 168,006 and Kshs. 202,978.60.

minor

The application date is inconsistent with the filing date recorded.

minor

The case number of this appeal before the High Court is not stated anywhere in the judgment.

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, "Elian Security Limited v Chebet (Employment and Labour Relations Appeal E003 of 2024) [2024] KEELRC 1318 (KLR)", Case Analysis (2024). Nakuru High Court Appeal arising from Nakuru CMELRC Case No. E318 of 2021 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1318/eng@2024-05-28

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