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ELRCDismissedNot stated in the judgment· [2014] KEELRC 812 (KLR)

Kenneth Njiru Nyorani v Dodhia Packaging Limited [2014] KEELRC 812 (KLR)

Industrial Court (Employment and Labour Relations Court)
10 February 2014
MMM. Mbaru
905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent filed a Notice of Motion on 8th July 2013 under Order 42 Rules 6 and 7 of the Civil Procedure Rules seeking stay of execution of the judgment/decree delivered on 5th October 2012 pending an intended appeal, supported by an affidavit of its director Dipak Shah. The respondent contended that it only became aware of the judgment on 25th November 2012 because notice of the delivery date was never served, that the appeal would be rendered nugatory absent a stay, and offered to deposit the decretal amount in a joint interest-earning account as security. The claimant opposed, arguing inordinate and unexplained delay, absence of any notice of appeal or draft memorandum demonstrating an arguable appeal, and that the application was designed to deny him the fruits of a judgment for wrongful termination. The court set out the settled conditions for stay: substantial loss, application without unreasonable delay, and security for due performance of the decree. It found that no notice of appeal or draft memorandum was attached, so there was no appeal which could be rendered nugatory, and that the nine-month delay from the respondent's claimed awareness of the judgment to filing was unexplained. The offer of security could not actualise an interest in a non-existent appeal. The court held that granting the application would be an injustice to a party already holding a judgment and dismissed the application dated 2nd July 2013 with costs to the claimant.

Key legal issues

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01

Whether a stay of execution can be granted where no notice of appeal or draft memorandum of appeal is exhibited

Holding

Stay cannot be granted where the applicant exhibits no notice of appeal or draft memorandum showing arguable grounds; the intended appeal must exist before it can be rendered nugatory

Reasoning

The court noted that neither counsel nor the application attached a notice of appeal or draft memorandum of appeal. Without these documents there is nothing to demonstrate the grounds of the intended appeal or how it would be rendered nugatory. The offer to deposit the decretal amount could not secure an interest that does not exist through a non-existent appeal.

p. 2
02

Whether the delay of nine months in filing the application was explained

Holding

The nine-month delay from the respondent's claimed awareness of the judgment to filing the application was unexplained and weighed against the grant of discretionary relief

Reasoning

The claimant demonstrated that although the respondent claimed to have discovered the judgment on 25th November 2012, the stay application was not filed until 8th July 2013. Delay is one of the established conditions for stay, and no explanation was offered. Discretionary relief is thus withheld.

p. 2

Legal principles established

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  • The right of appeal is a constitutional right actualising access to justice, and anything that renders an appeal nugatory impinges on that right
  • Stay of execution pending appeal is discretionary and requires establishment of substantial loss, absence of unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.The application dated 2nd July 2013 (Notice of Motion seeking stay of execution pending appeal) is dismissed
  2. 2.Costs to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rules 6 and 7
  • Industrial Court ActSection 17
  • Constitution of KenyaArticle 164(3)
Jurisdiction invoked
Order 42 Rules 6 and 7 of the Civil Procedure Rules; Section 17 of the Industrial Court Act; Article 164(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Kenneth Njiru Nyorani v Dodhia Packaging Limited [2014] KEELRC 812 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/812/eng@2014-02-10

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