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ELCPartially AllowedNot stated in the judgment as provided· [2015] KEELC 642 (KLR)

Nduta Keziah Kiema & 10 others v Lions Niru Shah (Chairman, Lions School Management Board) [2015] KEELC 642 (KLR)

Employment and Labour Relations Court
20 February 2015
RSRadido Stephen
704 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court paused execution of a wrongful dismissal award, but only because the employer agreed to deposit the full judgment money in a protected joint account.

What this practically means

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Executive summary

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This is a ruling on the Respondent's Notice of Motion filed on 25 November 2014, four days after the Employment and Labour Relations Court at Nakuru had, on 21 November 2014, pronounced judgment finding the Claimants' dismissals procedurally unfair and awarding each notice pay and four months' wages as compensation, with Mary Mbone receiving the maximum twelve months. The Respondent filed a Notice of Appeal and sought stay of execution pending appeal, contending it had filed a Notice of Appeal and applied for proceedings, was financially stable, and that the unemployed Claimants would be unable to refund the decretal sums if the appeal succeeded; it also offered security through an affidavit of Ramesh Thakar. The Claimants, through a Replying Affidavit by their advocate Steve Biko, opposed the motion as incompetent, a delaying ploy made in bad faith, and argued the Respondent had not shown the appeal had chances of success. The Court restated the Order 42 rule 6 principles: substantial loss, no unreasonable delay and security, as distilled in Mukuma v Abuoga and other authorities. It held that the appeal's chances of success is not a criterion in this Court or the High Court, that being a rule 5(2)(b) Court of Appeal matter. Finding no delay (about one month), an offer of security, and that impecuniosity of decree-holders alone is insufficient, the Court granted the stay conditionally upon deposit of the full decretal sums in a joint interest-earning account in the names of both sides' advocates, defaulting to Kenya Commercial Bank Ltd, Nakuru, with costs in the cause.

Key legal issues

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01

Principles for grant of stay of execution pending appeal

Holding

The trite principles derived from Order 42 rule 6 are substantial loss, no unreasonable delay, and provision of security; all were satisfied here.

Reasoning

The Court applied Order 42 rule 6 as distilled in Mukuma v Abuoga and other authorities. The application was filed about a month after judgment, so there was no delay. The Respondent offered security and contended the Claimants were persons of straw unable to refund. The Court held the impecuniosity point alone insufficient, but weighing all circumstances, and with the Respondent's offer of security, granted stay conditional on deposit of the decretal sums.

p. 2
02

Relevance of the appeal's chances of success

Holding

Chances of success is not a principle applicable to stay applications in this Court or the High Court; it applies to rule 5(2)(b) applications in the Court of Appeal.

Reasoning

The Claimants' advocate urged that the Respondent had not demonstrated the appeal had any chances of success. The Court rejected this as a criterion, distinguishing the narrower rule 5(2)(b) jurisdiction of the Court of Appeal from the Order 42 rule 6 jurisdiction. This removed the merits-based objection and narrowed the inquiry to substantial loss, delay and security.

p. 2

Legal principles established

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  • For stay pending appeal under Order 42 rule 6, an applicant must demonstrate substantial loss, make the application without unreasonable delay, and provide security for the due performance of the decree
  • The merits/chances of success of the intended appeal is not a criterion for stay under Order 42 rule 6 in the High Court or the ELRC; it applies only to rule 5(2)(b) applications in the Court of Appeal
  • The mere fact that a decree-holder may be unable to refund the decretal sum is not by itself sufficient to grant stay; the court must consider all circumstances

Court orders

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  1. 1.Prayer (c) of the motion granted: stay of execution pending the hearing and determination of the preferred appeal, on condition that the Respondent deposits the full decretal sums in a joint interest-earning account in the names of the Advocates on record for both sides with a commercial bank within 10 days
  2. 2.Should the parties not agree on the commercial bank, the account to be opened with any branch of the Kenya Commercial Bank Ltd, Nakuru
  3. 3.Costs of the motion in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6

Cases cited (4)

  • Mukuma v Abuoga
    (1988) KLR 645
  • Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others
    (2013) eKLR
  • Tabro Transporters Ltd v Absalom Dova Lumba
    (2012) eKLR
  • Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others
    (2010) eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay 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, "Nduta Keziah Kiema & 10 others v Lions Niru Shah (Chairman, Lions School Management Board) [2015] KEELC 642 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/642/eng@2015-02-20

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