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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application Number 106 of 2020· [2021] KECA 818 (KLR)

Letan Limited & 2 others v Nderitu Kaguu Githae & 8 Others

Court of Appeal
19 March 2021
1,604 words in judgment
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The bottom line

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Kenya's Court of Appeal paused collection of a Kshs 6 million judgment, confirming courts will stop enforcement that could make a pending appeal pointless.

What this practically means

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Executive summary

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This was an interlocutory application under rules 5(2)(b) and 41 of the Court of Appeal Rules, 2010 and Article 163(4) of the Constitution, seeking stay of execution and stay of proceedings pending an intended appeal against a ruling of the ELRC at Nakuru (Mbaru, J) dated 13th February 2020 in Claim Number 170 of 2018. The underlying suit was an employment dispute in which the ELRC entered an ex parte judgment in December 2018 ordering the applicants to deposit Kshs. 6,082,360 in court. The 2nd applicant, Ledama Ole Mesopir, managing director of the 1st and 3rd applicants, had died before the hearing and judgment; the trial court declined to set aside the ex parte judgment but substituted Iovanna Mesopir as a respondent and directed deposit of the judgment sum within 21 days. Applying the settled two-limb test for rule 5(2)(b) applications - arguability and nugatory-ness - the Court of Appeal found the intended appeal arguable, holding that the timing and necessity of substitution of a deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules was a bona fide issue. On the nugatory limb, the Court noted the respondents had filed a Notice to Show Cause and were moving swiftly to recover the decretal sums, which would render any successful appeal nugatory. The application was allowed with stay of execution and of further proceedings, costs in the intended appeal. The decision below was not on appeal before the Court at this stage; only interlocutory relief was determined.

Key legal issues

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01

Arguability of the intended appeal

Holding

The question of when substitution of a deceased defendant ought to have taken place, if at all, is arguable and worth ventilating before the Court.

Reasoning

The deceased, managing director of the 1st and 3rd applicant companies, died before the hearing and judgment in the ex parte proceedings. The court accepted that the timing and necessity of substitution of a deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules, and whether the personal representative ought to have been heard, raised bona fide issues meriting full consideration on appeal.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Stay was warranted because the respondents were moving swiftly to recover the decretal sum, which would render the appeal nugatory if it succeeded.

Reasoning

The applicants had been ordered to deposit Kshs. 6,082,360 in court, and the respondents had filed a Notice to Show Cause demonstrating an intention to execute promptly. The court found this showed the respondents were embarking poste haste to recover the decretal sums, effectively rendering the appeal nugatory if stay were refused. Both rule 5(2)(b) conditions were satisfied.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two conditions: that the appeal is arguable, and that if stay is refused and the appeal succeeds it would be rendered nugatory.

Court orders

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  1. 1.Stay of execution of the orders of the ELRC dated 13th February 2020 pending the hearing and determination of the appeal
  2. 2.Stay of further proceedings in the trial court pending the hearing and determination of the appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal
On appeal from
Employment and Labour Relations Court at Nakuru
Claim Number 170 of 2018
Jurisdiction invoked
Article 163(4) of the Constitution of Kenya, 2010; rules 5(2)(b) and 41 of the Court of Appeal Rules, 2010

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, "Letan Limited & 2 others v Nderitu Kaguu Githae & 8 Others", Case Analysis (2021). Civil Application Number 106 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/818/eng@2021-03-19

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