Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others (Civil Appeal (Application) E396 of 2023) [2023] KECA 1498 (KLR)
The bottom line
#Kenya's Court of Appeal paused enforcement of a Kshs.40-70 million salary order against Wajir WASCO, but only if the company deposits Kshs.30 million within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The grounds - that a final mandatory order was issued at an interlocutory stage and the applicable statutory law (sections 77 County Government Act and 82 Water Act) - are arguable, satisfying the first limb.
The court examined the memorandum of appeal and the respondents' opposition and held that the question whether a mandatory final order was issued at an interlocutory stage, together with grounds on the applicable law, cannot be deemed frivolous. An arguable ground need not succeed; success is for the appeal bench.
Stay of proceedings pending appeal
Refused; the applicants demonstrated no prejudice or infringement of fair trial rights if the petition proceeds to hearing.
The impugned ruling dealt only with continued payment of salaries pending the petition. It is in all parties' interest for the petition to be heard; trial courts must issue directions and rulings in the course of hearings, and not every such ruling attracts a stay of proceedings. No miscarriage of justice or fair-trial infringement was demonstrated.
Nugatory-ness and stay of execution on terms
Stay of execution granted conditionally on a Kshs.30 Million deposit in an interest-earning account, because sums paid from public funds would be difficult to recover if the appeal succeeded, given the respondents' financial status was unknown.
The 79 employees earn between Kshs.20,000 and Kshs.60,000 monthly and their financial status is unknown; the disputed amount ranges between Kshs.40 and 70 Million and is unclear. If the appeal succeeded, recovery of sums paid from public funds would be difficult, potentially rendering the appeal nugatory. The court balanced the competing interests by requiring a deposit of Kshs.30 Million within 30 days, failing which the stay lapses and the application stands dismissed.
Legal principles established
#- An applicant under rule 5(2)(b) must show, first, that the appeal or intended appeal is arguable and not merely frivolous, and secondly, that the appeal would be rendered nugatory if execution or further proceedings are not stayed.
- Stay of proceedings is a grave judicial action, granted sparingly and only where a miscarriage of justice would result; not every interlocutory direction or ruling warrants a stay of proceedings.
- An arguable ground is not one that will necessarily succeed at the hearing of the appeal.
- A court may grant stay of execution on terms, including conditional deposit in an interest-earning account, balancing competing interests of the parties.
Court orders
#- 1.Stay of execution of the ELRC ruling delivered on 25th May 2023 issued on condition that the applicants deposit Kshs.30 Million in an interest-earning account to be held jointly by the advocates for both parties
- 2.The deposit to be made within 30 days, failing which the stay shall lapse and the application shall stand dismissed
- 3.The appeal to be listed for hearing on a priority basis
- 4.Costs of the application to abide the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court
- Constitution Petition No. E076 of 2023 - Safi Abdullahi Adan & 2 Others v Wajir WASCO Ltd alias Wajir Water & Sewerage Company Ltd
- Jurisdiction invoked
- Article 164(3) of the Constitution, sections 3, 3A & 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others (Civil Appeal (Application) E396 of 2023) [2023] KECA 1498 (KLR)", Case Analysis (2023). Notice of Motion dated 19th June 2023 (application in intended appeal from Constitution Petition No. E076 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1498/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.