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ELRCDismissedNot stated in the extract· [2013] KEELRC 136 (KLR)

Anthony Mulaki v Addax Kenya Limited [2013] KEELRC 136 (KLR)

Industrial Court of Kenya
30 September 2013
JRJames Rika
542 words in judgment
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The bottom line

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The Industrial Court refused to pause payment of a Kshs 833,916 award to a dismissed employee, ruling the employer had shown no strong reason to delay.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, presided over by James Rika, Judge, delivered an Award on 13th June 2013 granting the Claimant, a former employee summarily dismissed by the Respondent, rent arrears of Kshs 833,916.30. The Respondent filed a Notice of Appeal and an application seeking stay of execution of the Award pending the intended appeal, supported by affidavits of its Finance Manager, Hellen Nyambura, and six judicial authorities. The Claimant opposed the application, urging the Court to apply its own principles on stay of execution set out in previous disputes. The Court found that the Respondent had not demonstrated strong and special circumstances to warrant the former employee waiting for the appeal outcome before enjoying the fruits of his Award. It further held that the appeal was not rooted in recondite matters of law, since the Court had not re-written the parties' contract: house rent allowance is a statutory entitlement under Section 31 of the Employment Act 2007, and every contract of employment is read subject to that Act. Additionally, the Claimant was found to be propertied and employable, able to repay the sum if the appeal succeeded. The Court also noted the Claimant's subsequent loss of employment with SGS following news of the litigation, and considered the Award necessary to cushion him against social risks arising from unemployment. The application was rejected, the awarded sum was ordered released to the Claimant's Advocates forthwith, with no order on costs.

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

Application rejected; the Respondent failed to establish strong and special circumstances and the appeal is not rooted in recondite matters of law.

Reasoning

The Court held that the Award merely enforced statutory basic entitlements under the Employment Act rather than re-writing the parties' contract, so the appeal raises no recondite legal question. It also found the Claimant propertied, employable and able to repay the sum if the appeal succeeded, and noted his subsequent unemployment following termination by SGS, warranting release of the award to cushion him against social risks.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires demonstration of strong and special circumstances.
  • Every contract of employment is subject to the Employment Act 2007, and house rent allowance is a basic statutory entitlement under Section 31.
  • A claimant's ability to repay the decretal sum weighs against granting stay.

Court orders

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  1. 1.The Application dated 15th July 2013 is rejected
  2. 2.The sum Awarded to the Claimant be released to his Advocates forthwith
  3. 3.No order on the costs

Authorities

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Legislation

  • Employment ActSection 31
  • Employment ActSection 26(1)
Jurisdiction invoked
Industrial Court's jurisdiction over its own awards and applications for stay of execution pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anthony Mulaki v Addax Kenya Limited [2013] KEELRC 136 (KLR)", Case Analysis (2013). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/136/eng@2013-09-30

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