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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 49 of 2019· [2021] KECA 656 (KLR)

Pressmaster Limited v John Elego & 103 Others

Court of Appeal
23 April 2021
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused a KShs 64.8 million employment judgment against Pressmaster, but only after the company secures the full amount by bank guarantee within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Karanja and Okwengu, JJ.A.) on a notice of motion dated 12th February 2019 by Pressmaster Limited seeking stay of execution of the judgment of the Employment and Labour Relations Court (Nduma Nderi, J) delivered on 10th August 2018 in ELRC Case No. 468 of 2013, in which John Elego and 103 others were awarded terminal dues computed at Kshs. 64,859,427. The applicant contended the intended appeal raised arguable issues, notably the respondents' locus to institute a class action and the trial court's reliance on an unregistered collective bargaining agreement, and that execution would render the appeal nugatory because most respondents, being unemployed, could not refund the decretal amount. The respondents opposed, arguing the appeal was not arguable, that a pending application for review of the computation order made the motion premature, and that the applicant could be compensated by damages. The Court, applying the settled Rule 5(2)(b) twin tests, held the review application did not impact the intended appeal since it targeted only the computation order and not the judgment; that the intended appeal was arguable; and that, given the substantial decretal sum and the unchallenged inability of most respondents to refund, a conditional stay was fair and just. The Court restrained execution of the judgment of 10th August 2018 and any resultant decree pending the appeal, on condition that the applicant provide a bank guarantee for Kshs. 64,859,427 within 30 days, failing which the stay would lapse. Costs of the application were to be in the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal arguable, resting on issues including the respondents' locus to bring a class action, reliance on an unregistered CBA, and whether the claimants were employees unlawfully dismissed

Reasoning

The memorandum of appeal raised questions on the respondents' locus in the class action, the correctness of relying on an unregistered CBA in awarding damages, and whether the claimants were employees of the applicant dismissed unlawfully. Applying the test that a single bona fide arguable point suffices, the Court concluded the appeal was arguable and not frivolous.

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02

Whether the application was premature due to the pending review application

Holding

The application was not premature because the review application sought review only of the computation order of 28th January/February 2019, not the judgment of 10th August 2018, and therefore did not impact the intended appeal

Reasoning

The applicant's review application in the ELRC targeted only the order adopting the Kshs. 64,859,427 computation, not the underlying judgment from which the appeal was lodged. Since the notice of appeal was against the judgment of 10th August 2018, and the decree figure flowed from it, the application was properly anchored on the notice of appeal and was properly before the Court.

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03

Whether the appeal would be rendered nugatory absent a stay

Holding

Given the substantial decretal sum and the unchallenged contention that most respondents are unemployed and unable to refund, the Court found the nugatory risk real and granted a conditional stay with bank guarantee security

Reasoning

Execution involved a substantial sum of Kshs. 64,859,427. Although a money decree ordinarily does not render an appeal nugatory where the respondent can repay, the applicant's contention that most respondents were unemployed and unable to refund was unchallenged. The Court therefore held it fair and just to grant a conditional stay requiring security by way of a bank guarantee within 30 days, failing which the stay would lapse.

p. 3

Legal principles established

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  • The filing of a notice of appeal confers jurisdiction on the Court under Rule 5(2)(b) to grant preservative orders, but such orders are discretionary and subject to the twin tests of arguability and nugatory-ness
  • An arguable appeal need not raise multiple points; a single bona fide arguable point suffices
  • A money decree will ordinarily not render an appeal nugatory if the respondent is a person of means who could repay; where the respondent cannot repay, a conditional stay with security is appropriate

Court orders

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  1. 1.Pending the hearing and determination of the appeal, the respondents, their servants or agents are restrained from executing the judgment of 10th August, 2018 or any resultant decree or consequential order therefrom
  2. 2.The stay is conditional on the applicant providing security for the sum of Kshs. 64,859,427 in the form of a bank guarantee within 30 days
  3. 3.In default of providing the security, the order of stay shall lapse
  4. 4.Costs of the application shall be in the appeal
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Case No. 468 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - interlocutory application for stay of execution / preservative orders pending appeal

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, "Pressmaster Limited v John Elego & 103 Others", Case Analysis (2021). Civil Application No. 49 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/656/eng@2021-04-23

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