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ELRCPartially AllowedNotice of Motion dated 20th February 2025 (in the suit following judgment delivered 24th January 2025)· [2025] KEELRC 2320 (KLR)

Runo v Kenya Wildlife Service (Cause 1773 of 2016) [2025] KEELRC 2320 (KLR)

Employment and Labour Relations Court
30 July 2025
3,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Kenya Wildlife Service (KWS), the respondent in an employment suit in which Gitonga Runo (claimant/judgment holder) was awarded Kshs. 3,440,000 (10 months' salary) plus interest, gratuity and costs by judgment of 24th January 2025, moved the court by Notice of Motion dated 20th February 2025 under Rules 44 and 45 of the ELRC (Procedure) Rules, 2024 seeking stay of execution of the judgment and decree pending its intended appeal to the Court of Appeal. Runo opposed, arguing the application was premature because no final decree had issued (gratuity computations remained outstanding), that the application was an abuse of process in a claim already 10 years in court, and that he was 65, ailing and dependent on the funds. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules as imported by Rule 73 of the ELRC Rules, requiring substantial loss, absence of unreasonable delay, and security. It found the application prompt (filed before the 30-day stay granted at judgment expired); found substantial loss established because the claimant filed no affidavit of means demonstrating capacity to refund the decretal sum should the appeal succeed, whereas KWS, a well-funded state corporation, posed no reciprocal risk; and held that under Order 42 Rule 8 and the Supreme Court's decision in Kenya Wildlife Service v Sea Star Malindi Limited, a public body funded by the exchequer need not furnish security, the lack of a final decree being a technicality. Guided by Butt v Rent Restriction Tribunal, the application was allowed with a temporary stay of execution of the judgment of 24th January 2025 pending the intended appeal, with costs of the application to the respondent/judgment creditor.

Key legal issues

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01

Test for stay of execution pending appeal

Holding

Order 42 Rule 6(2) of the Civil Procedure Rules, imported by Rule 73 of the ELRC (Procedure) Rules, 2024, governs: substantial loss, no unreasonable delay, and security as ordered by the court.

Reasoning

Rule 73(2) of the ELRC (Procedure) Rules 2024 directs that rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules. The court reproduced Order 42 Rule 6(2) and applied its three conditions, holding that the overriding objective under section 3 of the ELRC Act does not diminish that test but is considered alongside it.

p. 6
02

Security from a public body

Holding

The applicant, being a state corporation funded by the exchequer, is exempt from furnishing security under Order 42 Rule 8 and the Supreme Court's decision in Kenya Wildlife Service v Sea Star Malindi Limited.

Reasoning

Order 42 Rule 8 dispenses with security from the Government or public officers sued in official capacity. The Supreme Court in SC Pet No. E022 of 2025 held that for a statutory body funded by public coffers, requiring security of a large amount would itself impede access to justice. The absence of a final decree fixing the security sum was therefore a mere technicality.

p. 4
03

Substantial loss and burden of demonstrating ability to refund

Holding

The claimant/judgment holder failed to file an affidavit of means, so the applicant proved potential substantial loss, as the decretal sum if paid would be difficult to recover if the appeal succeeded.

Reasoning

Applying Boniface Kariuki Wahome v Peter Nziki Nyamai, once the applicant depones it cannot recover the decretal sum from the respondent, the burden shifts to the respondent to demonstrate means and capacity to refund. The claimant's replying affidavit and submissions were silent on his means; by contrast, there was no risk the state corporation would fail to pay if the appeal failed.

p. 7
04

Timeliness of the application

Holding

The application filed 20th February 2025, before expiry of the 30-day stay granted at judgment on 24th January 2025, was made without unreasonable delay.

Reasoning

Judgment was delivered on 24th January 2025 with a 30-day stay lapsing on 23rd February 2025. The application was filed on 20th February 2025, before the lapse, and the court found no delay in filing.

p. 6

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal; where the judgment debtor gives no affidavit of means showing capacity to refund, the applicant need only depone that refund is doubtful.
  • A statutory body funded by public coffers is exempt from furnishing security for stay of execution.

Court orders

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  1. 1.A temporary order of stay of execution of the judgment dated 24th January 2025 pending the hearing and determination of the respondent's (Kenya Wildlife Service's) intended appeal to the Court of Appeal
  2. 2.Costs of the application to the respondent/judgment creditor

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 44, 45, 73(2)
  • Civil Procedure RulesOrder 42 Rule 6(2), Order 42 Rule 8
  • Employment and Labour Relations ActSection 3
  • Civil Procedure ActSections 1A and 1B

Cases cited (9)

  • Halai & another v Thornton & Turpin Ltd
    [1990] eKLR
  • Butt vs Rent Restriction Tribunal
    (1979) eKLR; also cited as (1982) KLR 417
  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Boniface Kariuki Wahome vs Peter Nziki Nyamai & Another
    (2019) eKLR
  • RWW vs. EKW
    (2019) eKLR
  • Kenya Wildlife Service v Sea Star Malindi Limited
    SC Pet No. E022 of 2025
  • Kenya Women Microfinance Ltd v Martha Wangari Kamau
    [2020] eKLR
  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Kenya Shell case (referenced in Rhoda Mukuma quotation)
Jurisdiction invoked
Rules 44 and 45 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and the inherent powers of the court, with Rule 73(2) importing Order 42 Rule 6 of the Civil Procedure Rules

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, "Runo v Kenya Wildlife Service (Cause 1773 of 2016) [2025] KEELRC 2320 (KLR)", Case Analysis (2025). Notice of Motion dated 20th February 2025 (in the suit following judgment delivered 24th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2320/eng@2025-07-30

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