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ELRCDismissedNot stated in judgment (Ruling on Notice of Motion dated 14th March 2025)

Odhiambo v Kisang & 3 others (Cause E089 of 2023) [2025] KEELRC 1587 (KLR)

Employment and Labour Relations Court
3 June 2025
1,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause payment of a Kshs. 1.5 million judgment because the losing party failed all key conditions for a stay.

What this practically means

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Executive summary

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This is a first-instance ruling of the Employment and Labour Relations Court at Nairobi delivered by Nzioki Wa Makau, J on 3rd June 2025 on the Respondents/Applicants' Notice of Motion dated 14th March 2025 seeking stay of execution of the court's judgment of 19th February 2025, in which the Claimant was awarded Kshs. 1,513,924.30, pending an intended appeal. The Applicants argued they had lodged a notice of appeal promptly, that the appeal was arguable, that paying the decretal sum without proof of the Claimant's ability to repay would cause substantial loss and render the appeal nugatory, and offered various forms of security. The Claimant opposed, contending the application was a delay tactic, that no security had been furnished, and that he was financially capable of refunding the sum. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the parameters in RWW v EKW. It held the three conditions for stay are conjunctive and not disjunctive. While the application was found to have been made timeously, the Applicants failed to demonstrate substantial loss, failed to furnish security, and the grounds of the intended appeal did not disclose an arguable appeal. The motion was dismissed with costs to the Claimant/Respondent, and taxation before the Taxing Master was allowed to proceed.

Questions the Court framed

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

  1. 1.Whether the Applicants satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules
  2. 2.Whether the application was made without undue delay
  3. 3.Whether the Applicants demonstrated substantial loss
  4. 4.Whether security for the due performance of the decree was offered
  5. 5.Whether there is an arguable appeal

Key legal issues

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01

Conditions for stay of execution under Order 42 Rule 6(2)

Holding

All three conditions - substantial loss, no unreasonable delay, and security - must be satisfied concurrently; failure on any one defeats the application

Reasoning

The court set out the statutory thresholds under Order 42 Rule 6(2) and the parameters in RWW v EKW. It found the application was filed timeously, but the Applicants did not demonstrate the substantial loss they would suffer nor offer security, and the grounds of the intended appeal disclosed no arguable appeal. Because the conditions are conjunctive, failure on two limbs was fatal.

p. 3
02

Substantial loss and ability to repay the decretal sum

Holding

Mere assertion of inability to recover the decretal sum without proof of the respondent's finances does not establish substantial loss

Reasoning

The Applicants argued the Respondent had not shown capacity to refund Kshs. 1,513,924.30 if the appeal succeeded. The court nonetheless held that the Applicants failed to adequately demonstrate the substantial loss they would suffer, indicating that the evidential burden on substantial loss was not discharged despite their reliance on National Bank Ltd v Aquinas Francis Wasike.

p. 3
03

Timeliness of the application

Holding

Filing the notice of appeal within two weeks and the application within about a month of judgment constituted filing without undue delay

Reasoning

The court accepted, albeit describing the reasoning as a bit tenuous, that the motion was filed timeously despite the lapse of close to a month, so the delay limb was satisfied. The dismissal rested on the failure to prove substantial loss and lack of security, together with the absence of an arguable appeal.

p. 3

Legal principles established

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  • The three conditions for granting stay of execution pending appeal must be met simultaneously and are conjunctive, not disjunctive
  • Stay of execution preserves the subject matter so a successful appeal is not rendered nugatory, balanced against a litigant's right to the fruits of judgment

Court orders

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  1. 1.The Motion by the Respondents/Applicants for stay of execution is dismissed
  2. 2.Costs of the application awarded to the Claimant/Respondent
  3. 3.Taxation pending before the Taxing Master may proceed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Relief refused

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Stay of execution of the judgment delivered on 19th February 2025 awarding Kshs. 1,513,924.30

Applicants failed to demonstrate substantial loss, failed to furnish security, and the grounds disclosed no arguable appeal; the three conditions must be met conjunctively

p. 3

Costs

Motion by the Respondents/Applicants is dismissed with costs to the Claimant/Respondent.

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 three conditions for granting stay of execution pending appeal must be met simultaneously and are conjunctive and not disjunctive.
p. 3Conjunctive test for stay of execution
It is my considered view that the Applicants herein, though they brought this Application without undue delay, failed to adequately demonstrate the substantial loss that they would sufier, and also failed to furnish security.
p. 3Failure to satisfy substantial loss and security requirements
Motion by the Respondents/Applicants is dismissed with costs to the Claimant/Respondent. Taxation pending before the Taxing Master may now proceed.
p. 3Final orders and disposition
The grounds for the intended appeal are incapable of leading this Court to make the conclusion that there is an arguable appeal.
p. 3Absence of arguable appeal

Issues in the judgment

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minor

Party roles are inverted relative to the underlying suit: the parties seeking stay (who lost the judgment) are labelled Respondents/Applicants while the judgment creditor is labelled Claimant/Respondent, which is potentially confusing

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Odhiambo v Kisang & 3 others (Cause E089 of 2023) [2025] KEELRC 1587 (KLR)", Case Analysis (2025). Not stated in judgment (Ruling on Notice of Motion dated 14th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1587/eng@2025-06-03

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