Multiscope Consulting Engineers Ltd v Omwena
The bottom line
#Kenya's Court of Appeal paused an employment award's enforcement, but only after the employer deposited Kshs. 500,000 within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The ground that the trial court awarded compensation for redundancy without it being pleaded and without a hearing is arguable.
The applicant complained that the trial judge found the respondent was declared redundant and awarded 10 months' compensation although redundancy was neither pleaded nor demonstrated, denying the applicant an opportunity to be heard on that issue. The Court found this raised a fit subject for appellate consideration and was satisfied it was arguable.
Nugatory value of the appeal
The second limb was met because the applicant gave no assurance of ability to refund the decretal sums if paid.
The Court reasoned that if the respondent was paid and the appeal later succeeded, recovery would be difficult since the applicant had not provided assurances of its ability to refund or demonstrated means to do so. On that basis the nugatory limb was satisfied.
Form of the stay order
Given the applicant's demonstrated financial hardship, a conditional stay with a deposit of Kshs. 500,000 was the prudent course.
Although the threshold requirements were met, the applicant repeatedly stated it could not pay the decretal sums owing to its precarious financial position arising from the Covid-19 pandemic. Both parties thus appeared to be in a financial quagmire, prompting the Court to craft a conditional stay balancing the interests of both sides.
Legal principles established
#- An application under rule 5(2)(b) requires the applicant to demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is denied.
- Where the applicant demonstrates inability to pay the decretal sum, the Court may grant a conditional stay requiring deposit of a lesser sum into a joint interest-bearing account.
Court orders
#- 1.An order of stay of execution of the judgment of the Employment and Labour Relations Court dated 26th January 2021 is granted on condition that the applicant deposits Kshs. 500,000 in a joint interest earning account in the names of the parties' advocates within 45 days from the date of the ruling
- 2.The stay order will lapse in the event of failure by the applicant to comply with the deposit condition
- 3.Costs in the appeal
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. 498 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Multiscope Consulting Engineers Ltd v Omwena", Case Analysis (2022). Civil Application E476 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/760/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.