MAGOA ANDREW MOIRORE V KENYA BUREAU OF STANDARDS [2013] KEELRC 431 (KLR)

Industrial Court of Kenya

28 March 2013

MOMaureen Onyango

2,108 words in judgment

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The bottom line

What this practically means

Executive summary

This is a ruling of the Industrial Court of Kenya on the Respondent's Notice of Motion seeking stay of execution of the award delivered by Justice Byram Ongaya on 16th November 2012 in favour of the Claimant, Magoa Andrew Moirore, in the sum of Kshs.709,313.50 plus interest and 75% costs, and the decree issued on 11th January 2013. The original judgment found the Claimant had been unfairly dismissed, but reinstatement was not granted as it had not been pleaded. A 30-day stay was granted at delivery of the judgment, with liberty to file formal stay applications. None was filed; the Claimant applied for execution and proclaimed the Respondent's movable property for auction. The Respondent, having lodged a Notice of Appeal, sought stay pending appeal, arguing legitimate expectation, extraction of the decree without its involvement, premature execution before taxation, and its sound financial position entitling it to an unconditional stay. Justice Maureen Onyango rejected each of these arguments. The legitimate expectation ground failed because the Claimant never expressed an intention to appeal and there was no order against him; the record showed the Respondent itself applied for the decree; and execution before taxation was an inexcusable technicality, particularly against an unrepresented litigant. Stay is not granted as a matter of course nor on account of a party's status. However, as the Respondent had raised triable issues and taken reasonable steps towards appeal, stay pending appeal was granted on conditions: deposit of the decretal sum into a joint interest-earning account, payment of the auctioneers' costs, and payment of Shs.20,000/= to the Claimant as costs of the application.

Key legal issues

Legitimate expectation that the decree would not be executed

Holding

The ground was rejected; the Claimant never expressed an intention to appeal and there was no order against him to motivate an appeal

Reasoning

The Court examined the record and found the Claimant had only expressed disappointment at not being reinstated after the finding of unfair dismissal. He never expressed a desire to appeal. The Respondent had been granted a 30-day stay and was advised to file a formal application for stay, which it never did. These circumstances gave rise to no legitimate expectation barring execution.

p. 3

Extraction of the decree without the Respondent's involvement

Holding

The claim was contradicted by the record; it was the Respondent who applied for the decree, judgement and proceedings

Reasoning

The Respondent alleged the Claimant extracted the decree ex-parte without involving it. The record showed the Respondent itself applied for the decree together with the judgement and proceedings in its letter to the Deputy Registrar dated 19th November 2012. The Claimant only applied for execution after the 30-day stay lapsed without a formal stay application being filed.

p. 4

Execution before taxation of costs as a procedural bar

Holding

The objection was a technicality that could not defeat the Claimant's execution, given that justice should not be restricted by procedural technicalities

Reasoning

The Respondent argued execution was commenced before taxation without leave. The Court held this was a technical legal issue that the Respondent, aware the Claimant was unrepresented and not a lawyer, could not expect him to know. Both the Constitution and the Industrial Court Act provide that justice should not be unreasonably restricted by procedural technicalities. It also did not explain the Respondent's failure to seek stay earlier.

p. 4

Whether stay should be granted unconditionally given the Respondent's financial standing

Holding

Stay was granted but on conditions, including deposit of the decretal sum and payment of the Claimant's costs of the application

Reasoning

The Court acknowledged appeal is a right that every party should be allowed to pursue provided there are reasonable grounds. The Respondent had raised triable issues and taken reasonable steps towards appeal by applying for proceedings, judgement and decree without undue delay. However, its lapse in failing to apply for stay in good time, which caused auctioneer's costs to be incurred, disentitled it from an unconditional stay.

p. 4

Legal principles established

A party's mere expression of dissatisfaction with an award does not create a legitimate expectation that the other party will not execute the decree
Procedural technicalities should not restrict access to justice, including where a litigant is unrepresented
Stay of execution is not granted as a matter of course and a party's status does not earn special consideration
A party who has taken reasonable steps towards appeal and raised triable issues may be granted stay, but ordinarily on conditions

Court orders

1.Stay of execution of the Award delivered on 16th November 2012 and the Decree issued on 11th January 2013, together with any consequential order, pending the hearing and determination of the intended Appeal
2.The Respondent shall deposit the decretal sum into an interest earning account in the joint names of the Claimant and the Respondent's advocates
3.The Respondent shall pay costs of the Auctioneers
4.The Respondent shall pay the Claimant Shs.20,000/= being costs of the application

Authorities

Legislation

Industrial Court (Procedure) Rules, 2010Rule 27(1)(a) and (b)
Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
Civil Procedure Rules, 2010Order 51 rule 1
Civil Procedure ActSections 1A, 1B and 3A
Constitution of Kenyaprovision on justice not being unreasonably restricted by procedural technicalities
Industrial Court Actprovision on justice not being unreasonably restricted by procedural technicalities

Jurisdiction invoked: Rule 27(1)(a) and (b) of the Industrial Court (Procedure) Rules, 2010; Order 42 Rule 6(1) and (2) and Order 51 rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "MAGOA ANDREW MOIRORE V KENYA BUREAU OF STANDARDS [2013] KEELRC 431 (KLR)", Case Analysis (2013). Cause 344 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/431/eng@2013-03-28

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