Kenya Engineering Workers Union v Kenya Marine Contractors EPZ Ltd (Cause 152 of 2012) [2014] KEELRC 302 (KLR)
The bottom line
#A Kenyan employer seeking to delay paying a court-ordered wage award must prove real financial hardship and deposit security — winning an appeal later doesn't freeze payment now.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Respondent failed to demonstrate substantial loss; it gave no financial statements and the Court's award was based on a Ministry of Labour report showing profits and payment of some employees below minimum wage
The Court found it plausible that employees could not refund paid increments, but held that this alone was insufficient. The Respondent produced no figures or financial statements for 2012/2013. The record showed the Respondent was profitable except in 2010, and the Central Planning Unit report of 27 August 2013, on which the award was based, showed some Grievants were paid below prescribed minimum wages, which the Court termed manifestly illegal.
Delay
No delay arose; judgment was on 23 May 2014 and the motion filed on 20 June 2014
The Court compared the date of judgment with the date of filing of the Notice of Appeal and the Motion and found the application was brought timeously, so the second condition for stay was met without further analysis.
Security for due performance
The Court exercised its discretion to grant stay but conditioned it on security of Kshs 10,000,000/- by deposit or bank guarantee, following the approach in Kenya Kazi Security Services Ltd
The Court noted the report indicated an 11% wage increase would cost about Kshs 9.2 million for 2011/2013, and taking into account the sui generis nature of Industrial Court disputes and the Court of Appeal's practice in Kenya Kazi Security Services, considered this a suitable case to order security.
Arguability of the intended appeal
The proposed memorandum of appeal raised arguable points of law
The Court observed that the proposed appeal raised recurring arguable points of law, which supported the exercise of discretion in favour of granting a conditional stay rather than dismissing the motion outright.
Applicable legal framework for stay in the Industrial Court
Court of Appeal rule 5(2)(b) authorities are not directly applicable; rule 31 of the Industrial Court (Procedure) Rules incorporating Order 42 rule 6 of the Civil Procedure Rules governs
The Court noted the Respondent's authorities were premised on rule 5(2)(b) of the Court of Appeal Rules, whose principles are not identical to those in superior courts, and identified rule 31 of the Industrial Court (Procedure) Rules, 2010 as the primary provision, incorporating Order 42 of the Civil Procedure Rules.
Legal principles established
#- The primary statutory provision applicable to applications for stay of execution pending appeal from a decree of the Industrial Court is rule 31 of the Industrial Court (Procedure) Rules, 2010, which incorporates Order 42 of the Civil Procedure Rules
- The conditions for stay of execution pending appeal are substantial loss, application without unreasonable delay, and provision of sufficient security
- The Industrial Court deals with sui generis disputes and will develop or reshape Civil Procedure Rules principles to fit its specialist role
Court orders
#- 1.Prayer 3 of the Motion dated 20 June 2014 granted on condition: the Respondent deposits security in the sum of Kshs 10,000,000/- in the joint names of the Union and Respondent with a commercial bank within 15 days
- 2.Alternatively, the Respondent to furnish security to the Claimant Union in the form of a bank guarantee in the sum of Kshs 10,000,000/- within 15 days from the date of the ruling
- 3.Costs in the cause
- Jurisdiction invoked
- Sections 3 and 17 of the Industrial Court Act and rule 31 of the Industrial Court (Procedure) Rules, 2010, incorporating Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Kenya Marine Contractors EPZ Ltd (Cause 152 of 2012) [2014] KEELRC 302 (KLR)", Case Analysis (2014). Motion dated 20 June 2014 (arising from judgment of 23 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/302/eng@2014-09-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.