Matseshe v Kenya Institute of Management (Cause 303 of 2017) [2024] KEELRC 2289 (KLR)
The bottom line
#A Kenyan court allowed the Kenya Institute of Management's delayed bid to pause enforcement of an award, but only if it deposits the full amount 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 orders of stay of execution pending appeal are merited as per the three requirements of Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security
Key legal issues
#Whether the application for stay of execution pending appeal satisfied the conditions in Order 42 Rule 6(2)
Stay granted but conditioned on deposit of the decretal sum in court within 30 days, because although the delay was inordinate and unexplained, the court balanced that against the right not to render the appeal nugatory
The court set out the three requirements under Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security. It found the approximately 20-month delay unreasonable and not sufficiently explained. On substantial loss, it relied on authority that execution is a lawful process and does not by itself amount to substantial loss, but accepted that the pending Court of Appeal appeal risked being rendered nugatory. Performing a balancing act between the respondent's right to the fruits of judgment and the applicant's prospects on appeal, it granted stay conditional on a full deposit of the decretal sum as security.
Legal principles established
#- An appeal does not operate as an automatic stay of execution; stay is granted only on satisfaction of the Order 42 Rule 6(2) conditions
- Where an appeal is continuing in the Court of Appeal, stay may be allowed to avoid rendering the appeal nugatory, but on conditions
Court orders
#- 1.Stay of execution of the Award delivered on 30th June 2022 granted pending hearing and determination of the appeal, on condition that the Applicant deposits the decretal sum in Court within 30 days of the ruling
- 2.Failure to deposit the decretal sum within 30 days, the stay orders shall stand vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Nairobi C.A No. E311 of 2023 - Kenya Institute of Management v John Matseshe
- Jurisdiction invoked
- Article 162(2) and 164(3) of the Constitution; Section 12(3)(i) and (viii), 17(1) & 2 of the Industrial Court Act 2011; Rule 16 of the Industrial Court Rules; Order 42 Rule 6(2) of the Civil Procedure Rules
Relief refused
#Unconditional stay of execution pending appeal
The court found the delay of about 20 months in bringing the application unreasonable and unexplained, and granted stay only on condition that the decretal sum be deposited as security
Costs
No costs order recorded in the judgment
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.
It is trite law that an appeal does not operate as an automatic stay of execution.
An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2)
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal.
Having found that the Applicant approached this court with inordinate delay but balancing with the right to be heard and not rendering the Appeal nugatory this court will allow this Application but on condition that the Applicant deposits the decretal sum in Court within 30 days of this ruling failure to which the stay orders shall stand vacated.
Issues in the judgment
#The judgment inconsistently states the date of the decision being appealed - paragraph 1 and paragraph 9 give conflicting dates
The date of delivery of the ruling is stated inconsistently: dated at Nairobi 24th September 2024 but delivered virtually 25th September 2024
The role labels are internally inverted: the judgment designates Kenya Institute of Management (the judgment debtor seeking stay) as 'Respondent/Applicant' and John Matseshe (decree-holder) as 'Claimant/Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matseshe v Kenya Institute of Management (Cause 303 of 2017) [2024] KEELRC 2289 (KLR)", Case Analysis (2024). Nairobi C.A No. E311 of 2023 (stay application dated 14th February, 2024 arising from ELRC Award of 30th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2289/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.