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Court of AppealAllowedCivil Application No. NAI 89B of 2020· [2020] KECA 567 (KLR)

Safaricom PLC (Formerly known as Safaricom Limited) v Pauline Wangeci Warui [2020] KECA 567 (KLR)

Court of Appeal
19 June 2020
Martha Karambu KoomeM. K. KoomeMohamed Abdulahi WarsameM. WarsameJMJ. Mohammed
939 words in judgment
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The bottom line

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The Court of Appeal paused enforcement of a Kshs. 14.5 million employment award against Safaricom until its appeal is heard, because the money might be impossible to recover.

What this practically means

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Executive summary

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This was a single-judge-panel-free application by Safaricom PLC under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the Employment and Labour Relations Court at Nairobi (Onyango, J) delivered on 6th March 2020 in ELRC No. 442 of 2016, in which the applicant was ordered to pay the respondent Kshs. 14,552,600 in addition to Kshs. 46,224,890 already paid under a Mutual Separation Agreement. Safaricom argued it had an arguable appeal - contending that the employment relationship had been terminated by mutual agreement, that the judge erred in requiring a termination/disciplinary hearing despite the agreement, and in holding the agreement invalid and amounting to unfair or wrongful dismissal - and that execution would render the appeal nugatory because the respondent's means of reimbursing the decretal sum were unknown. The respondent filed no replying affidavit or submissions. Applying the twin Rule 5(2)(b) principles as laid down in Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others, the Court found the appeal arguable, particularly on whether a disciplinary hearing was required despite the Mutual Separation Agreement, and accepted the nugatory-risk argument. The Court allowed the motion, staying execution pending the intended appeal, with costs to abide the outcome of the appeal. The application was heard via Skype under the Court's COVID-19 Practice Directions. The decision does not disturb the judgment below; it preserves the position pending appeal.

Key legal issues

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Whether the applicant met the twin requirements for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The application was allowed: the intended appeal was arguable (whether a respondent should have been taken through a termination/disciplinary hearing despite a Mutual Separation Agreement) and execution of the substantial decretal sum would render the appeal nugatory given uncertainty about the respondent's means of reimbursement.

Reasoning

The court restated the settled twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others: the intended appeal must be arguable, and the appeal must be rendered nugatory if stay is not granted. It found one arguable ground on the validity and effect of the Mutual Separation Agreement, and accepted that the respondent may execute the decree of over Kshs. 14.5 million and that her means of reimbursement were unknown, making the appeal nugatory if it succeeded.

p. 2

Legal principles established

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  • An application for stay under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that, if the orders sought are not granted, the success of the intended appeal will be rendered nugatory; the discretion is wide and guided only by the interests of justice.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Employment and Labour Relations Court (Onyango, J) delivered on 6th March, 2020 pending the hearing and determination of the intended appeal
  2. 2.Costs to abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (1)

  • Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC No. 442 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal 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, "Safaricom PLC (Formerly known as Safaricom Limited) v Pauline Wangeci Warui [2020] KECA 567 (KLR)", Case Analysis (2020). Civil Application No. NAI 89B of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/567/eng@2020-06-19

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