Peter Njoroge Ndungu v Board of Directors of David Sheldrick Wildlife Trust [2013] KEELRC 978 (KLR)

Industrial Court of Kenya

3 October 2013

MOMAUREEN ONYANGO

974 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

A Kenyan employer won a stay of a KSh 554,568 award, but its delay in applying cost it the worker's legal costs and auctioneer's fees.

What this practically means

Executive summary

This is a ruling on a Notice of Motion by the Respondent seeking a stay of execution of the Industrial Court's judgment/award delivered on 10th May 2013, pending an intended appeal to the Court of Appeal. The Respondent contended that the Claimant had commenced execution unprocedurally, that attachment of its motor vehicles used in desnaring services procured by the Kenya Wildlife Service would paralyse its business, and that the Claimant lacked means to refund the decretal sum should the appeal succeed. The Claimant countered that he was entitled to execute after the expiry of the 30-day stay, that no arguable appeal or proof of the Claimant's impecuniosity had been demonstrated, and that he was entitled to the fruits of his judgment. The court, per Lady Justice Maureen Onyango, applied the settled three-pronged test for stay: absence of inordinate delay, substantial loss, and security. Finding the 15-day delay not inordinate, substantial loss established through the threatened attachment of the Respondent's tools of trade, and repayment capacity doubtful given the Claimant's admitted unemployment, the court allowed the application. It granted a stay of execution pending the intended appeal on condition that the Respondent deposit the decretal sum of Kshs.554,568.80 into a joint interest-earning account in the names of both parties' advocates within 14 days. However, because the Respondent had failed to apply for stay before the lapse of the initial 30-day stay, thereby necessitating execution, the court ordered the Respondent to pay the Claimant's costs of the application and the auctioneer's fees, taxable in default of agreement.

Key legal issues

Whether the conditions for stay of execution pending appeal were satisfied

Holding

The application was allowed; stay granted subject to the deposit of the decretal sum as security

Reasoning

The court found that the applicant intended to appeal (having filed a Notice of Appeal), that substantial loss would arise from attachment of its motor vehicles used in business, and that the claimant's admission of unemployment raised doubt as to repayment ability. The delay of 15 days was not inordinate given the prior 30-day informal stay. Security was imposed via a joint interest-earning account.

p. 2

Whether the applicant was guilty of inordinate delay

Holding

No - the 15-day delay after the lapse of the informal 30-day stay was not inordinate

Reasoning

The court accepted counsel's submission that the applicant had been granted a 30-day stay on 10th May 2013 and that the formal application filed 15 days after its lapse was not inordinate delay. However, the delay was still penalised in costs, the court ordering the applicant to bear the claimant's costs of the application and the auctioneer's fees.

p. 2

Legal principles established

The conditions for grant of stay of execution pending appeal are: absence of inordinate delay, substantial loss, and provision of security
Where the decree-holder's ability to repay the decretal sum is in doubt, it is in the interest of justice to grant a stay

Court orders

1.Stay of execution of the judgment of 10th May 2013 and all consequential orders pending the hearing and determination of the intended appeal
2.Respondent to deposit the decretal sum of Kshs.554,568.80 in a joint interest earning account in the names of the Claimant's and Respondent's advocates within 14 days from the date of ruling
3.Respondent to pay the Claimant's advocates costs for this application and the auctioneers fees as agreed, failing which the same shall be taxed by the Registrar

Authorities

Cases cited (2)

NATIONAL INDUSTRIAL CREDIT BANK LTD V AQUINAS FRANCIS WASIKE & ANOTHER
(2006) eKLR
SWAPAN SADHAN BOSE V KETAN SURENDRA SOMAIA 23 OTHERS

Jurisdiction invoked: Inherent powers of the Industrial Court to grant stay of execution pending appeal

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

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

Mwarania v Cabinet Secretary National Treasury and Planning & another; Kenya Reinsurance Corporation Limited (Interested Party) (Petition E034 of 2023) [2025] KEELRC 1349 (KLR)
[2025] KEELRC 1349 (KLR)9 May 2025
William Muga Aketch v Tailors and Textile Workers Union [2019] KEELRC 2538 (KLR)
[2019] KEELRC 2538 (KLR)29 Jan 2019

Cite this brief

Caselaw, "Peter Njoroge Ndungu v Board of Directors of David Sheldrick Wildlife Trust [2013] KEELRC 978 (KLR)", Case Analysis (2013). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/978/eng@2013-10-03

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