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ELRCPartially AllowedIndustrial Cause (Notice of Motion dated 30th July 2014)· [2014] KEELRC 1304 (KLR)

Jenny Luesby v Standard Group Limited [2014] KEELRC 1304 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
16 September 2014
MMM. Mbaru
1,929 words in judgment
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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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This is a ruling of the Industrial Court at Nairobi (M. Mbaru, Judge) delivered on 16th September 2014 on the respondent Standard Group Limited's Notice of Motion dated 30th July 2014, seeking stay of the judgment and award of 16th July 2014 which had awarded the claimant, Jenny Luesby, compensation for summary dismissal and/or unfair termination, notice pay, general damages, due salary, accrued leave, costs and interest. The respondent, having filed a notice of appeal, argued that the award was substantial, that the claimant is not a Kenyan national with no known assets in Kenya, and that any payment would render the intended appeal nugatory, relying on Mitu-Bell and other authorities. The claimant opposed, noting unpaid uncontested amounts, unpaid non-monetary orders (a Certificate of Service), her gainful employment and demonstrable Kenyan assets worth over 30 million shillings. The court applied Order 42 Rule 6 and Rule 17 of the Industrial Court Procedure Rules, restating the three conditions of substantial loss, no unreasonable delay and security, holding that execution alone does not amount to substantial loss and that lack of known assets of a judgment holder does not bar enjoyment of the judgment. It distinguished the Aviation & Allied Workers and Auma authorities and accepted the application was filed without undue delay. The court partially allowed the motion: the respondent to release 50% of the judgment amount to the claimant within seven days, with a stay of 14 days terminating if no appeal is filed and served. No separate costs order was made in the ruling.

Key legal issues

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01

Whether substantial loss was established to warrant stay of execution pending appeal

Holding

The court found that substantial loss was not established; the claimant is in gainful employment, holds a valid judgment, and lack of known assets does not bar enjoyment of the fruits of the judgment.

Reasoning

The court restated the Order 42 Rule 6 conditions: substantial loss, application without unreasonable delay, and security. It held execution is a lawful process and the applicant must show execution will irreparably affect the core of the applicant as successful party in the appeal. No draft appeal was attached. Indigence of a judgment creditor is no bar to execution; hence only partial relief was granted.

p. 3
02

Whether the application was brought without undue delay

Holding

The court accepted that the application was filed without undue delay after judgment.

Reasoning

Judgment was delivered on 16th July 2014, the 14-day stay granted at judgment had lapsed, and the Notice of Motion was dated 30th July 2014. The court expressly found the timing limb of the test satisfied, which justified granting a further conditional 14-day stay and partial release of the decretal sum rather than outright dismissal.

p. 3

Legal principles established

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  • The three conditions for stay of execution under Order 42 Rule 6 CPR share an inextricable bond and absence of one affects the exercise of the court's discretion.
  • Execution being put in motion, or even completed, does not by itself amount to substantial loss under Order 42 Rule 6.
  • The right of appeal is a constitutional right actualising access to justice, and anything that renders the appeal nugatory impinges on the very right of appeal.

Court orders

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  1. 1.The Applicants shall release 50% of the judgement amount to the claimant within the next seven (7) days
  2. 2.The applicants have stay of 14 days from the date of this ruling, if no appeal is filed and served upon the claimant, the same will terminate

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Industrial Court ActSection 17
  • Industrial Court Procedure RulesRule 17
  • Constitution of Kenya, 2010Article 164(3)
  • Employment Act (repealed provisions referred to)Cap 226

Cases cited (6)

  • Kenya Airports Authority versus Mitu-Bell Welfare Society and Another
    [2014] eKLR
  • Aviation & Allied Workers union versus Kenya Airways Ltd and Others
    Industrial Cause No. 1616 of 2012
  • Tobias Ong’any Auma and Others versus Kenya Airways Co-operation
    [2001] eKLR
  • Feisal Amin Janmohammed T/A Dunyia Forwarders versus Shami Trading Co. Ltd
    [2014] eKLR
  • Mukuma V Abuoga
    (1988) KLR 645
  • Silverstein versus Chesoni
    [2002] 1 KLR 867
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010, read with Rule 17 of the Industrial Court Procedure Rules and Section 17 of the Industrial Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Jenny Luesby v Standard Group Limited [2014] KEELRC 1304 (KLR)", Case Analysis (2014). Industrial Cause (Notice of Motion dated 30th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1304/eng@2014-09-16

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