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ELRCDismissedApplication dated 7th May 2013 (stay of execution pending appeal)· [2013] KEELRC 246 (KLR)

John Ayieta Ondiek v Communication Workers Union [2013] KEELRC 246 (KLR)

Industrial Court of Kenya
9 July 2013
763 words in judgment
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The bottom line

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A Kenyan employment court refused to pause payment of a Kshs.486,000 award, ruling employers must show special reasons before delaying money owed to employees.

What this practically means

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Executive summary

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The Claimant served the Respondent Trade Union for 17 years as Executive Officer and Personal Assistant to the General Secretary, Benson Okwaro. His retirement was declared unfair termination of employment and on 8th April 2013 the Court awarded him Kshs.486,000. The Respondent indicated an intention to appeal to the Court of Appeal and filed an application dated 7th May 2013 for stay of execution pending appeal, supported by an affidavit of Mr. Okwaro sworn on 6th May 2013. The application was opposed through the affidavit of the Claimant's advocate, Mr. J. L. Onyango, sworn on 17th May 2013. The Court heard that the Claimant had suffered strokes, first after the rejection of his appeal to Okwaro against retirement, and again during the secondary proceedings; the Court found this information relevant and believable, given that Mr. Onyango is an officer of the Court. The Court set out special principles governing stay of Awards in favour of employees: the applicant must show special circumstances; Awards are meant to be fast, just and effective remedies which must reach the employee promptly; Section 17 of the Industrial Court Act does not grant a general right of appeal, which must rest on recondite matters of law; and the applicant must show that payment would dissipate the subject matter and make appellate restoration of the status quo impossible. The Respondent demonstrated no special circumstances. The Court also held that industrial dispute settlement is not limited by legal technicalities and rules of evidence, and the letters introduced after closure of proceedings were peripheral. The stay application was rejected, interim orders vacated, the Claimant given liberty to execute, with no order on costs.

Key legal issues

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01

Whether special circumstances meriting stay of execution were shown

Holding

The application for stay was rejected because no special circumstances were demonstrated.

Reasoning

The Court held that in employment disputes, principles favouring prompt payment of Awards to employees outweigh ordinary stay principles. Awards of the Industrial Court are fast, just and effective remedies, and unless special circumstances are shown the employee must receive the Award promptly. The Respondent failed to show that payment would dissipate the subject matter or make appeal nugatory.

p. 2
02

Whether the appeal right under Section 17 of the Industrial Court Act was properly invoked

Holding

Section 17 does not grant a general right of appeal; the appeal must rest on recondite matters of law.

Reasoning

The Respondent expressed intention to appeal to the Court of Appeal and sought stay pending appeal. The Court held that an appeal must be shown to be based on recondite matters of Law, implying the Respondent had not satisfied this threshold in seeking stay.

p. 2
03

Whether letters introduced after closure of proceedings could be considered in the Award

Holding

The letters were properly considered as they related to facts already alluded to by the parties in evidence and pleadings.

Reasoning

The Court held that industrial dispute settlement is not limited by legal technicalities and rules of evidence; negotiations, consultations and conciliation preceding adjudication are relevant. The Court has wide latitude in managing proceedings, and the impugned letters were peripheral indicia, not the backbone of the Award.

p. 2

Legal principles established

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  • Stay of execution of employee Awards requires demonstration of special circumstances; the ordinary principles are subordinated in employment disputes
  • Section 17 of the Industrial Court Act does not grant a general right of appeal; appeals must be based on recondite matters of law
  • The applicant must show that payment would dissipate the subject matter and render appellate judgment incapable of restoring the status quo
  • Industrial Court dispute settlement is not confined by legal technicalities or rules of evidence; the Court may consider out-of-Court proposals and has wide latitude in managing proceedings

Court orders

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  1. 1.The application for stay of execution dated 7th May 2013 is rejected
  2. 2.The interim orders of stay are vacated and the Claimant placed at liberty to execute
  3. 3.No order on the costs
Jurisdiction invoked
Industrial Court Act No. 20 of 2011, Section 17

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, "John Ayieta Ondiek v Communication Workers Union [2013] KEELRC 246 (KLR)", Case Analysis (2013). Application dated 7th May 2013 (stay of execution pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/246/eng@2013-07-09

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