Automated Summary
Key Facts
The Bakery, Confectionery, Food Manufacturing & Allied Workers Union (Applicant) sought to stay execution of a 2014 judgment against The Wrigley Company (E.A) Limited (Respondent) pending appeal. The court required the Applicant to demonstrate (1) an arguable appeal, (2) substantial loss from immediate execution, and (3) timely filing. The Applicant failed to prove they would suffer substantial loss if the Ksh.922,480.00 judgment were enforced, and their delay in filing (over a year after the judgment) was deemed inordinate. The court ruled the stay application disallowed, emphasizing the Respondent's right to terminal benefits after years of service.
Issues
- The court emphasized the non-severability of the three conditions for a stay of execution (substantial loss, no undue delay, and security), as established in prior cases like Zacharia Mboni v. Sanghaw and Mukuna v. Abuoga. The Applicant's failure to meet all criteria, particularly the inability to prove the Respondent's unlikelihood to restitute the decretal sum, led to the denial of the stay application.
- The court considered whether the Applicant met the non-severable requirements under Order 42 Rule 6 of the Civil Procedure Rules 2010 for a stay of execution pending appeal. These include demonstrating substantial loss would result, showing the application was made without undue delay, and offering security for the decree. The Applicant failed to prove the Respondent would be unable to pay the decretal amount if the appeal succeeded, and the delay in filing was deemed inordinate.
Holdings
- The court held that the Applicant failed to discharge the onus of demonstrating that the Respondent is unlikely to restitute the decretal amount if the Appeal is successful. The court emphasized the protracted nature of the matter and ruled in favor of allowing the grievant to receive terminal benefits earned over many years.
- The Appeal was deemed arguable, but the court found no evidence that the payment would render the Appeal nugatory. Security provisions, even if offered, would not balance the scales of justice in this prolonged case.
- The application for stay of execution was disallowed with costs. The court noted the inordinate delay in filing the Application and ruled against granting the stay to avoid denying timely justice to the Claimant.
Remedies
The application for stay of execution is disallowed. The applicant has not discharged its onus to demonstrate the Respondent is unlikely to pay the decretal amount. The court ruled in favor of allowing the grievant to enjoy terminal benefits and ordered the applicant to pay the costs.
Monetary Damages
922480.00
Legal Principles
The court emphasized that the Applicant must satisfy all three conditions under Order 42 Rule 6 of the Civil Procedure Rules 2010 (substantial loss, no undue delay, and furnishing security) to obtain a stay of execution. The Applicant failed to discharge this burden, as they did not demonstrate the Respondent would not restitute the decretal amount if the Appeal succeeded.
Precedent Name
- Kenneth Bundi Kabute & 2 Others V. Daniel Njagi David
- Republic V. The Commissioner for Enforcement and Investigations exparte Wananchi Group Kenya Limited
- Zacharia Mboni & Another V. Rajiendia Ratilal Sanghaw & Others
Cited Statute
Civil Procedure Rules 2010
Judge Name
Mathews N. Nduma
Passage Text
- the burden is on the Applicant to demonstrate that the Respondent is unlikely to restitute the decretal amount if the Appeal is successful.
- An applying party must satisfy all the three (3) ingredients which are inseparable before he can be granted a stay of execution pending Appeal.