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ELRCPartially AllowedKisumu CMELRC No. E256 of 2022 (Appeal)

Kenya Institute of Management v Ogola (Appeal E080 of 2024) [2025] KEELRC 1467 (KLR)

Employment and Labour Relations Court
12 May 2025
NMNzioki Wa Makau
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, a learning institution, moved the Employment and Labour Relations Court at Kisumu by an application dated 14th February 2025 seeking stay of execution of the judgment and decree in Kisumu CMELRC No. E256 of 2022, delivered on 5th December 2024, in a dispute involving a decretal sum of Kshs. 1,208,000/-. The Appellant argued the appeal was arguable, that execution would render it nugatory and expose it to substantial loss, and offered to deposit Kshs. 300,000/- as security, contending that depositing the full decretal sum would cripple its budget-funded operations. The Respondent, by replying affidavit and submissions, urged dismissal, or alternatively that the Appellant deposit the entire decretal sum in a joint interest-earning account, citing Halai & another v Thornton & Turpin (1963) Ltd, G.N. Muema T/A Mt. View Maternity & Nursing Home v Miriam Maalim Bishar & another, and RWW v EKW. The Court framed the issue as whether a conditional stay could issue, applying the Order 42 Rule 6(2) matrix: substantial loss, absence of unreasonable delay, and security. It found substantial loss established but held the offered Kshs. 300,000/- insufficient security, adopting the joint interest-earning account mechanism so that neither party suffers loss. On 12th May 2025 Nzioki Wa Makau, J granted stay conditional on deposit of the entire decretal sum in a joint interest-earning account held by the advocates within 30 days, failing which the stay stands vacated, with costs to abide the appeal.

Questions the Court framed

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

  1. 1.Whether a conditional order for stay of execution should issue against the judgment and decree dated 5th December 2024
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether a conditional stay of execution may be granted

Holding

Stay was granted on condition that the entire decretal sum be deposited in a joint interest-earning account within 30 days, failing which the stay stands vacated

Reasoning

The Court applied the three limbs of Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. It found substantial loss established since the Appellant might not recover the decretal sum if the appeal succeeded. However, the proposed partial deposit of Kshs. 300,000/- was inadequate security. Following precedent relied on by the Respondent, a joint interest-earning deposit of the full decretal sum protects both parties, as the funds earn interest rather than lying idle in a court deposit.

p. 3
02

Whether there was unreasonable delay in bringing the application

Holding

The Court did not find the delay fatal; the Appellant explained the judgment of 5th December 2024 was followed by the court vacation and closure of counsel's chambers until the third week of January 2025

Reasoning

The application was filed on 14th February 2025, shortly after the judgment. The Appellant attributed the interval to the court vacation and closure of its counsel's chambers. The Respondent contended the delay was lengthy and unexplained, but the Court's analysis focused on the security condition rather than treating the delay as disqualifying.

p. 2

Legal principles established

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  • Stay of execution may be granted conditionally, and security by way of deposit of the decretal sum in a joint interest-earning account secures the decree without either party suffering loss since the funds earn interest

Court orders

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  1. 1.Stay of execution granted on condition that the entire decretal sum is deposited in a joint interest earning account to be held by the Advocates on record
  2. 2.The deposit be made within 30 days failing which the stay granted stands vacated
  3. 3.Costs shall abide the outcome of the appeal

The bench

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

NM
majority

Wrote the judgment

On appeal from
Magistrates' Court (CMELRC) at Kisumu
CMELRC No. E256 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Stay on the Appellant's proposed partial deposit of Kshs. 300,000/-

The Court found the partial deposit insufficient security and required the entire decretal sum to be deposited in a joint interest-earning account

p. 3

Costs

Costs shall abide the outcome of the appeal.

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.

The Court is persuaded that there would be substantial loss if the stay were not granted and the Appellant was to succeed in the appeal.
p. 3substantial loss
the Court is not persuaded that the deposit of a sum of Kshs. 300,000/- would sufice to meet the requirements of the third limb of the matrix for determination as to whether the conditions for grant of stay are met.
p. 3adequacy of security
Stay granted on condition that the entire decretal sum is deposited in a joint interest earning account to be held by the Advocates on record. The said deposit be made within 30 days of today failing which the stay granted stands vacated.
p. 3final orders
Costs shall abide the outcome of the appeal.
p. 3costs

Issues in the judgment

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minor

Judgment states the application was filed on 14th February 2025 but the Respondent's submissions refer to filing on '14th February 2024', which would predate 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, "Kenya Institute of Management v Ogola (Appeal E080 of 2024) [2025] KEELRC 1467 (KLR)", Case Analysis (2025). Kisumu CMELRC No. E256 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1467/eng@2025-05-12

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