Voks Fashions Limited v Baraza (Employment and Labour Relations Appeal E006 of 2024) [2024] KEELRC 2851 (KLR)
The bottom line
#Kenya's High Court stayed execution of a judgment only on condition the appellant deposits the decretal 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 appeal filed on 9th January 2024 was time-barred under section 79G of the Civil Procedure Act
- 2.Whether the applicant was served with a proclamation of attachment before the motor vehicle was attached
- 3.Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules
- 4.Whether the delay in bringing the application was inordinate
Key legal issues
#Timeliness of the appeal under section 79G of the Civil Procedure Act
The appeal filed on 9th January 2024 was within time because the period from 21st December to 13th January is excluded under Order 50 Rule 4
The ruling was delivered on 1st December 2023. Section 79G requires appeals from subordinate courts to be filed within 30 days. Order 50 Rule 4 omits the period between 21st December and 13th January from computation of time for doing any act under the Rules. Applying this provision, the filing on 9th January 2024 fell within the statutory window, defeating the preliminary objection.
Service of proclamation notice before attachment
On a balance of probabilities a proclamation notice was served and the applicant refused to sign it; the applicant was not candid with the Court
The Court found a proclamation notice existed (VCK-1) and believed the respondent's account that the applicant refused to sign. The applicant had relied on an earlier proclamation notice in a prior affidavit, contradicting his claim that no proclamation was served, showing lack of candour.
Conditions for stay of execution under Order 42 Rule 6
Substantial loss was demonstrated (value of the attached motor vehicle), delay was not inordinate, but security was a mandatory condition; stay granted conditionally on deposit of the decretal amount within 30 days
The Court applied Butt v Rent Restriction Tribunal and Order 42 Rule 6(2), balancing the interests of the decree holder and the applicant. The applicant demonstrated risk of substantial loss; the delay was excused by the Order 50 Rule 4 computation. However, allegations of irregular judgment could not displace the security requirement.
Jurisdiction of the Magistrate's Court raised only in submissions
Submissions are not pleadings; the issue could not be entertained as it was neither a ground of appeal nor in the application
Although counsel raised the magistrate court's jurisdiction in written submissions, the Court held that submissions are not pleadings and treated the submission as unfounded, refusing to determine an issue not properly before it.
Legal principles established
#- By virtue of Order 50 Rule 4 of the Civil Procedure Rules, the period between 21st December and 13th January (both inclusive) is omitted from computation of time for filing appeals
- An irregularity of the lower court judgment cannot be used to defeat the mandatory security condition for stay of execution
Court orders
#- 1.Order of stay of execution of Judgment and Decree in Milimani CMEL Cause No. 196 of 2022 of 29th June 2023 pending hearing and determination of the appeal against the ruling of Hon. Lucy Ambasi (CM) delivered on 1st December 2023, on condition that the decretal amount be deposited in Court within 30 days
- 2.Stay to lapse if security of the decretal amount is not deposited as ordered
- 3.Motor vehicle registration number KDB 717C be released to the Applicant on payment of storage fees, if any, and auctioneer fees
- 4.Mention on 25th November 2024 for directions on the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court, Milimani
- Milimani CMEL Cause No. 196 of 2022
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Unconditional stay of execution as sought by the Applicant
The mandatory condition of security under Order 42 Rule 6 could not be defeated by arguments about the irregularity of the lower court judgment
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.
Taking into consideration the foregoing, the Court grants an Order of stay of execution of Judgment and Decree in Milimani CMEL Cause No. 196 of 2022 of 29th June 2023 pending hearing and determination of the appeal against the Ruling of Hon. Lucy Ambasi (CM) delivered on the 1st December 2023 on condition the decretal amount be deposited in Court within 30 days of this Order.
The appeal filed on 9th January 2024 is held as not time-barred.
Submissions are not pleadings and the Court treated those submissions by Counsel as unfounded.
The regularity of the judgment of the lower Court is the question for the Court to consider on appeal and cannot be used to defeat the mandatory condition of stay in Order 42 Rule 6 of the Civil Procedure Rules
Failure to deposit security of the decretal as ordered the Order for stay of execution to lapse.
Issues in the judgment
#Judgment refers inconsistently to the motor vehicle registration number, KDB 757C in the application and KDB 717C in later passages and final orders
Judgment states the impugned ruling was delivered on 1st December 2023 but elsewhere says 1st December 2024
Warrants of attachment dated 14th February 2024 are elsewhere described as dated 14th February 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Voks Fashions Limited v Baraza (Employment and Labour Relations Appeal E006 of 2024) [2024] KEELRC 2851 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2851/eng@2024-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.