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ELRCPartially AllowedCause No 976 of 2010· [2013] KEELRC 598 (KLR)

Micheal Kiboi Gatumia v Mastermind Tobacco (K) Limited [2013] KEELRC 598 (KLR)

Industrial Court of Kenya
13 June 2013
MMM. Mbaru
1,019 words in judgment
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The bottom line

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A Kenyan employment court allowed an employer to delay payment only partially, releasing half the award immediately and holding half in a joint lawyers' account pending appeal.

What this practically means

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Executive summary

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This was a Notice of Motion dated 6th November 2012 brought by the respondent under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and sections 1A and 1B of the Civil Procedure Act, seeking a stay of execution of the judgment delivered on 16th October 2012 pending an intended appeal to the Court of Appeal. The respondent, supported by the affidavit of Kiogora Mutai, argued that judgment was delivered in the morning contrary to usual practice, causing its counsel's absence; that the appeal, attacking the award of final dues as contrary to the parties' contract, had high chances of success; and that the claimant's uncertain employment meant any decretal sum paid could not be recovered if the appeal succeeded. The claimant, Michael Kiboi Gatumia, opposed the application through the Replying Affidavit of Michael Kiboi Gatumia, contending that the claim was fully litigated, that he earns a monthly annuity from the respondent's Staff Retirement Benefit Scheme held by ICEA, and that his family and assets would secure any refund, so he should not be denied the fruits of his judgment. The court held that the purpose of a stay is to preserve the subject matter so a successful appeal is not rendered ineffective, and that security should be given in the way least disadvantageous to the party giving it. Noting that only a Notice of Appeal and no draft Memorandum of Appeal had been filed, the court granted a conditional stay: 50% of the decretal amount to be released to the claimant within 14 days, and 50% deposited in a joint bank account in the names of both advocates' firms. Costs were awarded in the motion. Judgment delivered at Nairobi on 13th June 2013 by M. Mbaru, Judge.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6 were satisfied

Holding

A conditional stay was granted: half the decretal sum released to the claimant and half deposited in a joint interest account in the advocates' joint names

Reasoning

The court held that the purpose of a stay is to preserve the subject matter so the intended appeal is not rendered ineffective. The claimant is unemployed but earns a monthly pension and should not be wholly denied the fruits of his judgment. Because the respondent had filed only a Notice of Appeal and no draft Memorandum of Appeal, the court granted a conditional stay to ensure the appeal is filed and prosecuted without frustrating the claimant.

p. 2
02

Whether the respondent would suffer substantial loss if the decree were executed

Holding

The apprehension of inability to recover any refund was unfounded; the claimant's pension and assets provided adequate recourse

Reasoning

The claimant deponed that he earns a monthly annuity from the respondent's Staff Retirement Benefit Scheme held by ICEA, payable for life, and has acquired assets including his home, with family willing to secure any refund. The court accepted that the pension, though not substantial, is available to offset any dues within a reasonable time, so substantial loss was not made out for a full stay.

p. 2

Legal principles established

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  • The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the successful appeal is not rendered nugatory
  • Security for a stay should be given in a manner least disadvantageous to the party giving it while adequately protecting the opposite party
  • A cash deposit condition ensures an appellant pursues the appeal diligently without denying a successful litigant the fruits of the judgment

Court orders

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  1. 1.Conditional stay of execution of the judgment pending the intended appeal
  2. 2.50% of the decretal amount be released to the claimant within 14 days
  3. 3.50% of the decretal amount be deposited in a joint bank account in the names of both advocates, the firms of Kiogora Mutai & Co. Advocates and Ochieng', Onyango Kibet & Ohaga Advocates
  4. 4.Costs of the motion in the cause (costs in the motion)

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure ActSections 1A and 1B
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and sections 1A and 1B of the Civil Procedure Act

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, "Micheal Kiboi Gatumia v Mastermind Tobacco (K) Limited [2013] KEELRC 598 (KLR)", Case Analysis (2013). Cause No 976 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/598/eng@2013-06-13

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