Jubilee Health Insurance Ltd v Riaga (Appeal E043 of 2025) [2025] KEELRC 2827 (KLR)
The bottom line
#A Kenyan court paused enforcement of an employment judgment because the appellant offered security and showed a valid appeal, but refused them costs for filing duplicate applications.
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 application was sub judice and an abuse of court process given a similar application pending before the Magistrate's Court
- 2.Whether a stay of execution can issue in respect of the judgment and decree, the Respondent contending that the challenged order was a negative order
- 3.Whether the conditions for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules were met
Key legal issues
#Whether the conditions for stay of execution pending appeal under Order 42 Rule 6(2) were established
The court found the conditions satisfied: substantial loss, no unreasonable delay, and security by way of a bank guarantee for the decretal sum, and granted the stay pending appeal
The court applied the settled principles in Order 42 Rule 6(2) as restated in Vishram Ravji Halai v Thornton & Turpin. It found an appeal capable of being argued, that substantial loss would result if the decree were executed, and that security had been deposited by bank guarantee. On that basis the discretion was exercised in favour of the Appellant, and stay was granted pending determination of the appeal.
Whether the application was barred as sub judice and an abuse of process due to the parallel application before the Magistrate's Court
The court did not strike out the application on this ground; it noted the Appellant's prevarication but determined the motion on its merits
The Respondent argued that a similar application dated 17th July 2025 was pending before the Magistrate's Court, invoking section 6 of the Civil Procedure Act and the John Florence Maritime Services decision on sub judice and forum shopping. The court did not strike out the application, but the Appellant's conduct in the parallel proceedings was reflected in the refusal of costs.
Whether the orders sought related to a negative order incapable of being stayed
The court treated the stay as relating to the ex parte judgment and decree in the underlying suit, not to the ruling dismissing the setting-aside application
The Respondent, relying on Western College of Arts and Applied Sciences v Oranga and Kenya Commercial Bank Ltd v Tamarind Meadows, argued that stay cannot issue against a negative order. The court framed the motion as one seeking stay of the judgment and decree of the Magistrate's Court in CMELRC 100 of 2022, and the Appellant had clarified that the stay sought related to the ex parte judgment, not the ruling.
Legal principles established
#- Stay pending appeal requires substantial loss, an application made without unreasonable delay, and furnishing of security for the due performance of the decree
- Where security for the decretal sum is furnished and the appeal is arguable, stay pending appeal will be granted
Court orders
#- 1.Stay of execution of the judgment and decree in Kisumu CMELRC No. 100 of 2022 granted pending determination of the appeal
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court (CMELRC), Kisumu
- Kisumu CMELRC No. 100 of 2022
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Costs of the application sought by the Appellant
The court declined to award costs given the Appellant's conduct in pursuing parallel applications before this Court and the Magistrate's Court
Costs
No order as to costs
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.
There has been a deposit of security and therefore I grant the stay pending determination of the appeal herein. There is however no order as to costs given the prevarication of the Appellant in the matter before this Court and the Magistrate's Court.
The Court exercises its discretion applying these principles and finds there is an appeal capable of being argued and that there would be substantial loss if the judgment and decree of the Lower Court would be executed.
The principles guiding the grant of a stay of execution pending appeal are well settled and these principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules.
Issues in the judgment
#The judgment refers to the underlying suit inconsistently as both 'Kisumu CMELRC No. 100 of 2022' and 'Kisumu CMELRC No. E100 of 2022'
The record does not state the case number of the appeal or this application before the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Jubilee Health Insurance Ltd v Riaga (Appeal E043 of 2025) [2025] KEELRC 2827 (KLR)", Case Analysis (2025). Not stated in judgment (appeal against ruling in Kisumu CMELRC No. 100 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2827/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.