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ELRCPartially AllowedNotice of Motion dated 19th December 2012 (Industrial Court)· [2013] KEELRC 474 (KLR)

SHANKAR SAKLANI v DHL GLOBAL FORWARDING (K) LIMITED [2013] KEELRC 474 (KLR)

Industrial Court of Kenya
25 January 2013
MMM. Mbaru
900 words in judgment
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The bottom line

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A Kenyan employment court halted enforcement of an award only on condition the losing company deposits half the money as security.

What this practically means

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Executive summary

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This was a Notice of Motion dated 19th December 2012 by the respondent in an Industrial Court matter, brought under sections 12(1)(2)(3) of the Industrial Court Act and Rules 16, 27 and 31 of the Industrial Court (Procedure) Rules, 2010, seeking stay of execution of the court's award and decree issued on 23rd November 2012 pending an intended appeal to the Court of Appeal. The claimant had been awarded USD 89,200 and Kshs 193,871.13 plus interest. The respondent argued it had filed a Notice of Appeal on 4th December 2012, had a draft memorandum with arguable issues, that the 30-day stay had lapsed, and that the claimant, being unemployed and resident outside the jurisdiction after his work permit was cancelled, might be unable to refund the sums if the appeal succeeded. The claimant opposed, contending non-compliance with Rule 16(2) and lack of security for due performance. The court reiterated that the purpose of a stay is to preserve the subject matter so that a successful appeal is not rendered ineffective, and that security should not unduly disadvantage the party furnishing it while protecting the decree-holder. Finding the respondent would suffer loss if the decretal sums were paid out, but noting that only a Notice of Appeal and no memorandum of appeal was on record, the court granted a conditional stay: 50% of the decretal sum was to be deposited in a joint bank account in the names of both advocates' firms. Costs were awarded in the motion. Judgment delivered at Nairobi on 25th January 2013 by M. Mbaru, Judge.

Key legal issues

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01

Whether to grant a conditional stay of execution pending appeal

Holding

A conditional stay was granted requiring the respondent to deposit 50% of the decretal sum in a joint interest account of both advocates' firms.

Reasoning

The court held that stay applications preserve the subject matter so a successful appeal is not rendered ineffective. The respondent had filed a Notice of Appeal and would suffer loss if the decretal sums (USD 89,200 and Kshs 193,871.13 plus interest) were paid out, since the claimant was unemployed and outside the jurisdiction after his work permit was cancelled. However, because only a Notice of Appeal and not a memorandum had been filed, the stay was made conditional on a deposit to protect the claimant and prevent frustration.

p. 2

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory, while security should not deprive a successful litigant of the fruits of litigation.
  • Security should be given in a manner least disadvantageous to the party giving it, provided the opposite party is adequately protected.

Court orders

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  1. 1.Conditional stay of execution of the award and decree issued on 23rd November 2012 pending the hearing and determination of the intended appeal
  2. 2.Deposit of 50% of the decretal sum in a joint bank account in the names of both advocates - LJA Associates Advocates and Waiganjo Wachira & Company Advocates
  3. 3.Costs in the motion

Authorities

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Legislation

  • Industrial Court Actsection 12(1)(2)(3)
  • Industrial Court (Procedure) Rules, 2010Rules 16(1)(2)(3)(4)(5), 27(1)(C), 31(2)
Jurisdiction invoked
Sections 12(1)(2)(3) of the Industrial Court Act and Rules 16(1)(2)(3)(4)(5), 27(1)(C), 31(2) of the Industrial Court (Procedure) Rules, 2010

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, "SHANKAR SAKLANI v DHL GLOBAL FORWARDING (K) LIMITED [2013] KEELRC 474 (KLR)", Case Analysis (2013). Notice of Motion dated 19th December 2012 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/474/eng@2013-01-25

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