https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1357

Onyango v Family Bank Limited (Cause 508 of 2019) [2026] KEELRC 1357 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1357 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 508 of 2019 HS Wasilwa, J May 20, 2026 Between Paul Victor Onyango Claimant and Family Bank Limited Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 5th March 2026 seeking orders THAT: - 1.Spent 2.This Honourable court be pleased to order a stay of execution of the Judgement and Decree delivered by Honourable Justice Hellen Wasilwa on 19th February 2025 pending the hearing and determination of this Application. 3.Pending inter partes hearing and determination of this application an order of stay of execution do issue to stay the attachment an sale of the Items set out in the Proclamation dated 5th March,2025 issued by Lifeline Auctioneers. 4.This Honourable Court be pleased to order stay of execution of the Judgement and Decree delivered by Honourable Lady Justice Hellen Wasilwa on 19th February 2025 pending the hearing and determination of the Respondent’s appeal in NAIROBI CIVIL APPEAL NO. E685 OF 2025 against part of the Judgement and Decree. 5.The costs of this application be provided for. Respondent/ Applicant’s Case 2.The Applicant avers that this Court delivered judgment on 19th February 2025 in favour of the Claimant against it and awarded the Claimant Kshs. 640,000 being compensation equivalent to eight (8) months’ salary, Kshs. 80,000 being one month salary in lieu of notice and the value of the motor vehicle assessed at Kshs. 863,153.30 together with costs of the suit and interest. 3.The Applicant states that upon delivery of the Judgment, the Court declined to grant a temporary stay of execution and directed that in the event of imminent danger of execution, the Respondent was at liberty to file a formal application for stay of execution. 4.The Applicant further avers that being dissatisfied with that part of the Judgment awarding the Claimant the motor vehicle valued at Kshs. 863,153.30 as per the loan value, it lodged Nairobi Civil Appeal No. E685 of 2025 challenging the said award 5.It is the Applicant’s case that the Claimant’s Bill of Costs was subsequently taxed at Kshs. 240,226 and that the Claimant instructed Lifeline Auctioneers to execute for both the decretal sum and taxed costs within seven (7) days, thereby exposing the Applicant to imminent and substantial prejudice. 6.The Applicant asserts that it stands to suffer substantial loss and irreparable damage unless stay of execution is granted pending the hearing and determination of the Appeal. 7.It avers that it has already settled the uncontested portion of the decretal sum amounting to Kshs. 504,000 being the net amount after statutory deductions from Kshs. 720,000 and annexed proof of payment into the Claimant’s bank account as evidence of good faith and compliance with the Judgment save for the contested sum forming the subject of the appeal. 8.The Applicant contends that the appeal raises arguable points of law and fact, particularly on the valuation of the motor vehicle and the legal basis upon which the loan value thereof was awarded as compensation. 9.It states that the Application is not intended to re-litigate the findings of this Court but to preserve the substratum of the appeal and safeguard its constitutional right to have the appeal heard and determined on merit without being rendered nugatory. 10.The Applicant further avers that the Claimant has not placed before Court any evidence demonstrating his financial ability to refund the contested decretal amount of Kshs. 863,153.30 or the sum of Kshs. 2,715,628 inclusive of auctioneer’s fees in the event the appeal succeeds. 11.The Applicant states that the auctioneer’s fees of Kshs. 660,240 contained in the Proclamation Notice dated 5th March 2026 are excessive, irregular and disproportionate as they are pegged on the entire decretal sum of Kshs. 2,065,628 notwithstanding that the Applicant has already paid Kshs. 504,000 and that only the balance comprising the contested award and costs remained outstanding. 12.The Applicant reiterates that it is willing and ready to furnish reasonable security for the due performance of the decree by way of a bank guarantee or such other security as this Court may direct pending the hearing and determination of the appeal. 13.It is the Applicant’s case that unless stay of execution and stay of taxation are granted, the Claimant will proceed with execution thereby rendering the appeal nugatory and occasioning irreparable prejudice and substantial loss to the Applicant. Therefore, the Court should allow the application in the interest of justice and on such conditions as it may deem fit. Claimant/Respondent’s Case 14.The Respondent avers that on 19th February 2025, this Court delivered Judgment in his favour and awarded him compensation for unfair termination together with other reliefs including motor vehicle registration number KCM 262K valued at Kshs. 863,153.30 and costs of the suit. 15.The Respondent states that this Court specifically found at page 19 paragraph 35 of the Judgment that the motor vehicle had been repossessed by the Applicant and consequently ordered that he be compensated at the loan value of Kshs. 863,153.30. 16.The Respondent avers that the Applicant has misrepresented the findings of this Court by alleging that the issue regarding the motor vehicle remains unresolved. He contends that the Court conclusively determined that motor vehicle registration number KCM 262K which had been repossessed by the Applicant was to be compensated at the loan value of Kshs. 863,153.30 and that the said award forms part of the decretal sum arising from the Judgment. 17.It is the Respondent’s case that the Applicant cannot purport to re-litigate issues already determined by the Court through the present application for stay of execution. 18.The Respondent asserts that the Applicant has failed to demonstrate any substantial loss it stands to suffer if the decretal sum is paid. He further avers that the Applicant is a large financial institution and that its allegation that he may be unable to refund the decretal amount in the event the appeal succeeds is baseless, speculative and unsupported by evidence. 19.The Respondent contends that it is settled law that a successful litigant ought not to be deprived of the fruits of his Judgment without sufficient cause. 20.The Respondent states that his Bill of Costs was lawfully taxed at Kshs. 240,226 by this Court and annexed a Certificate of Taxation dated 27th February 2026. He avers that the execution process only commenced after the Applicant failed to satisfy the decree despite being fully aware of the Judgment. 21.The Respondent states that execution of a lawful decree cannot amount to prejudice but is merely the lawful enjoyment of the fruits of Judgment. 22.The Respondent disputes the Applicant’s allegation that part payment was made towards satisfaction of the decree. He avers that the Applicant, being the custodian of the bank statement relied upon, purportedly deposited Kshs. 504,000 on 25th March 2025 and withdrew the same amount on 27th March 2025, two days later. He therefore contends that he has not received any payment from the Applicant. 23.The Respondent avers that the present Application is frivolous, misconceived and intended to delay him from enjoying the fruits of his Judgment and urges the Court to dismiss the same. Respondent/Applicant’s Submissions 24.The Applicant submitted on two issues: whether the Respondent has established sufficient grounds for the grant of a stay of execution; whether the Appeal at the Court of Appeal Will Be Rendered Nugatory 25.On the first issue, the Applicant submitted that the applicable legal framework is under Order 22 Rule 22(2) and (3) and Order 42 Rule 6 of the Civil Procedure Rules, 2010 which provide that an Applicant seeking stay of execution must demonstrate that the application has been brought without unreasonable delay, that substantial loss may result unless the orders sought are granted and that the Applicant is willing to furnish security for the due performance of the decree. 26.On whether there was unreasonable delay, the Applicant submitted that this Court ought to take judicial notice that on 19th February 2025, its oral application for stay was declined and the Court directed that a formal application for stay be filed in the event of imminent danger of execution. 27.It was submitted that the Proclamation Notice by Lifeline Auctioneers was issued on 5th March 2026 with a seven-day notice before execution and that the instant application was filed on the same date immediately upon receipt of the proclamation notice and therefore without undue delay. 28.On substantial loss, the Applicant submitted that substantial loss is the cornerstone in an application for stay of execution. Reliance was placed on the decision in Nzilu v Inter-Religius Council of Kenya & another [2026] KEELRC 605 (KLR) wherein the Court held: “…on the test for determining that an Applicant will suffer substantial loss in the context of stay of execution of monetary decrees, in the case of Century Oil Trading Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where it held: “Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment.” 29.The Applicant submitted that it has already paid the Claimant Kshs. 504,000 demonstrating good faith and compliance. This evidence remains uncontroverted by the Claimant. Despite this, the Claimant seeks to execute for Kshs. 2,715,628.84, which includes auctioneer’s fees of Kshs. 660,240.00, a figure that is manifestly disproportionate and not anchored on lawful execution or arithmetic as per the sum awarded by the Court. 30.The Applicant further submitted that the amount in the proclamation notice is irregular charge as it has already paid Kshs.504,000.00 and the remainder of Kshs. 1,108,379.00( being Kshs. 863,153 of the awards and Kshs. 240,000.00 costs of the suit) which form the substratum of the Appeal lodged. 31.It was submitted that execution is not merely enforcement of a decree, but an inflated recovery process exposing the Applicant to irrecoverable financial prejudice. According to the Applicant, the exposure to a total sum of Kshs. 2,715,628.84 before the appeal is heard, without any security or guarantee of recovery, constitutes a substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules. 32.The Applicant further submitted that the Claimant has failed to demonstrate his financial ability to refund the decretal sum in the event the appeal succeeds and that payment of the decretal amount will expose the Applicant to real and substantial loss including the risk of non-recovery. 33.On security, the Applicant submitted that it has expressed willingness to furnish a bank guarantee or such other security as the Court may direct pending hearing and determination of the appeal. As a regulated financial institution, it is fully capable of furnishing adequate security and that such security will safeguard the interests of the Claimant during the pendency of the appeal, while simultaneously preserving its right of appeal and ensuring the appeal is not rendered nugatory. 34.On whether the appeal will be rendered nugatory, the Applicant submitted that unless execution is stayed, the appeal will be rendered nugatory once the decretal sum is paid out to the Claimant; as it has nopractical remedy even if the appeal succeeds. 35.The Applicant submitted that the Claimant has not placed before this Court any evidence of his financial means or capacity to refund Kshs.2,715,628.00 in the event the appeal is allowed. It was argued that a mere denial in the Replying Affidavit that he cannot refund the money is insufficient. 36.It is the Applicant’s submission that the burden lies on the Claimant to demonstrate his financial capacity, which he has failed to discharge. Reliance was placed on Victonell Academy Ltd v Mwangi [2026] KEELRC 720 (KLR) where the Court cited National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] KECA 333 (KLR) and stated: “This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.” 37.The Applicant therefore submitted that the appeal raises arguable issues concerning the valuation and award of the motor vehicle and unless the orders sought are granted, the appeal risks being rendered nugatory in light of the substantial sums involved and the absence of evidence on the Claimant’s ability to refund the decretal amount. Claimant/Respondent’s Submissions 38.The Respondent submitted on three issues: whether the Applicant has satisfied the conditions for grant of stay of execution; whether the Applicant has demonstrated substantial loss; and whether the application is intended to deny the Claimant the fruits of judgment. 39.The Respondent submitted that the application is governed by Order 42 Rule 6(2) of the Civil Procedure Rules which provides that no order for stay of execution shall issue unless the Applicant demonstrates substantial loss, that the application has been made without unreasonable delay and that security for the due performance of the decree has been furnished. He further relied on Article 48 of the Constitution on the right of access to justice and Article 159(2)(b) of the Constitution which provides that justice shall not be delayed. 40.On whether the Applicant has met the threshold for grant of stay, the Respondent submitted that substantial loss is the cornerstone for grant of stay of execution and that the Applicant merely alleges inability to recover the decretal sum without tendering any proof. 41.It is the Respondent’s submission that execution of a lawful decree does not amount to substantial loss and relied on Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) where the Court held that an Applicant must demonstrate specific loss and not make mere assertions. 42.It was submitted that the Applicant is a financial institution and has not demonstrated any hardship, has provided no evidence of financial risk In contrast, the Claimant has demonstrated that he has not been paid the decretal sum; and that the alleged payment of Kshs. 504,000 is false and misleading. 43.The Respondent submitted that the burden of proof has not shifted to him as alleged by the Applicant. In the instant case there is no evidence of risk; and no proof of inability to recover. He argued that Courts have held in Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR that substantial loss must be real, not speculative. 44.On execution, the Respondent submitted that it is trite law that a successful litigant is entitled to enjoy the fruits of judgment. He argued that execution is lawful and not prejudicial; and that he commencedexecution only after failure to pay. Reliance was placed on Mukuma v Abuoga [1988] KECA 107 (KLR) where the Court held that: “Stay aims to prevent loss, not to obstruct justice.” 45.The Respondent further submitted that the alleged partial payment of Kshs. 504,000 is false as evidence shows that the money was withdrawn shortly after deposit; and that he never received any funds. It was submitted that the conduct demonstrates bad faith and an attempt to mislead the Court. 46.The Respondent submitted that the instant application is intended to delay justice. The Applicant lost the case, filed appeal and now seeks to delay execution; which conduct is discouraged by Courts as held in Century Oil Trading Company Limited V Kenya Shell Limited [2008] eKLR. 47.On security, the Respondent submitted that the Applicant merely expressed willingness to furnish security without actually depositing any security before Court. Reliance was placed on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR where the Court held that Security is mandatory and must be real. 48.On whether the appeal will be rendered nugatory, the Respondent submitted that the decree herein is purely monetary and that money decrees are recoverable. In Kenya Shell Ltd v Kibiru (supra), it was held that inability to refund must be proven not assumed. The Applicant has not proven inability to recover. 49.It is the Respondent’s submission that the Applicant has failed to satisfy all the conditions under Order 42 Rule 6 of the Civil Procedure Rules as substantial loss has not been proved, the alleged delay remained questionable and no proper security has been furnished. 50.I have considered the averments and submission of the parties herein. The applicant seeks stay of execution of this court’s judgment and decree on the ground that they are dissatisfied with the said judgment and have preferred an appeal therein. 51.It is not contested that an appeal has been filed at the Court of Appeal. This court only need to move as provided under order 42 rule 6 of the Civil Procedure Rules in determining whether or not to grant the stay orders. The applicant having filed an appeal it would be prejudicial not to grant the stay orders as the appeal may be rendered nugatory in case the appeal succeeds. 52.That notwithstanding, the applicant have agreed to furnish security before court. I will on the said premise allow the stay application on the ground that the entire decretal sum is deposited in an interest earning account held in the join names of both counsels on record within 60 days in default execution may proceed. Costs to abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE