Gicheha Farms Limited & another v David Gicheru [2021] KECA 728 (KLR)
The bottom line
#Kenya's Court of Appeal paused enforcement of a Kshs 1.65 million employment award because the employers were never properly notified of the judgment date.
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 intended appeal is arguable
- 2.Whether the intended appeal will be rendered nugatory unless stay of execution is granted
Key legal issues
#Whether the intended appeal was arguable
The Court found the intended appeal arguable on the ground of denial of the right to be heard, given that the applicants were never served with notices of mentions or the notice of delivery of judgment.
It was common ground that, apart from service of the respondent's submissions on 11th October 2019, the applicants were never served with notices of the various mentions ordered by the court, nor with the notice of delivery of judgment. The Court held that whether service of submissions alone, without any indication that replies were required and within what time, together with failure to serve notice of the judgment date, constitutes sufficient notice and a fair opportunity to be heard was a point fit for determination at the hearing of the intended appeal. That point was arguable and not frivolous.
Whether the intended appeal would be rendered nugatory
The Court found the nugatory limb satisfied because the respondent, a former employee earning Kshs 10,620 per month, had not demonstrated means or ability to repay the substantial decretal sum if the appeal succeeded.
The applicants feared their former employee, who earned Kshs 10,620 per month, could not repay the amounts awarded if the appeal succeeded. Although the respondent characterised the decree as a money decree, he did not advert to his means and ability to repay the decretal amount should the intended appeal succeed. In those circumstances the Court was satisfied both requirements under rule 5(2)(b) were met and granted stay until the hearing and determination of the intended appeal.
Legal principles established
#- To obtain stay of execution under rule 5(2)(b), an applicant must establish that the intended appeal is arguable and that it will be rendered nugatory unless stay is granted.
- Whether an intended appeal will be rendered nugatory depends on the circumstances of each case.
- Where a respondent does not advert to their means and ability to repay a decretal amount should the intended appeal succeed, the nugatory test may be satisfied notwithstanding that the decree is a money decree.
Court orders
#- 1.An order of stay of execution of the judgment of the trial court dated 21st January 2020 until the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Pet. No. 103 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
to entitle the applicants to an order of stay of execution under rule 5(2) (b) of this Court’s Rules, they must establish that their intended appeal is arguable, and that unless we grant an order of stay of execution, it will be rendered nugatory if it succeeds
As regards whether the intended appeal will be rendered nugatory, this will depend on the circumstances of each case.
We grant an order of stay of execution of the judgement of the trial court dated 21st January 2020 until the hearing and determination of the intended appeal. Costs of this application shall abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheha Farms Limited & another v David Gicheru [2021] KECA 728 (KLR)", Case Analysis (2021). Civil Application No. NAI 166 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/728/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.