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ELRCPartially AllowedCase No. 937 of 2015 (interlocutory application arising from judgment delivered 23rd July 2015)· [2015] KEELRC 554 (KLR)

Koki Muia v Samsung Electronics East Africa Ltd [2015] KEELRC 554 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
21 August 2015
LNLinnet Ndolo
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court can grant partial stay of judgment — employers appealing must pay half now and secure the rest by bank guarantee.

What this practically means

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Executive summary

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This is a ruling by the Industrial Court at Nairobi on a Notice of Motion dated 31st July 2015 by the Respondent, Save the Children, seeking stay of execution of a judgment delivered on 23rd July 2015 by Nzioki wa Makau J in favour of the Claimant, Koki Muia, awarding her among other heads Kshs 7,152,000 as 12 months' compensation for sexual and racial discrimination and unlawful termination, plus notice pay, salary and bonus, costs and interest. The Respondent filed a notice of appeal and sought stay on the grounds of substantial loss, alleging the Claimant's means were unknown and recovery would be difficult if the appeal succeeded, while offering security. The Claimant opposed, asserting she was a woman of means as Managing Director and shareholder of Rainbow Adpoint Limited. The court, Linnet Ndolo J, framed a single issue: whether the Respondent had made out a case for stay pending appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and case law adding the nugatory-appeal condition, the court found the application brought without delay, security offered, and the appeal arguable but not frivolous. On substantial loss, the court held the Claimant's failure to quantify her income did not render her a woman of straw, but weighed her right to enjoy the fruits of judgment against the Respondent's right of appeal. The court granted a conditional partial stay: 50% of the decretal sum to be released within 14 days, the balance secured by a bank guarantee perfected within 30 days, with automatic lapse on breach, and costs of the application to be costs in the appeal.

Key legal issues

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01

Whether stay of execution pending appeal conditions under Order 42 Rule 6(2) were satisfied

Holding

Stay granted on conditional terms: half the decretal sum payable, half secured by bank guarantee

Reasoning

The court found the application was brought without delay, security was offered, and the draft memorandum of appeal raised substantive issues. On substantial loss, the court held the Claimant's unspecified means did not make her a woman of straw, but balanced the parties' competing rights by allowing partial release of the decretal sum with the balance secured.

p. 4
02

Whether the intended appeal was arguable

Holding

Yes - the draft memorandum of appeal raised substantive issues meriting judicial time

Reasoning

Relying on Syner-Med Pharmaceuticals Ltd v Glaxo Group Limited, the court held it need not delve into the merits; it need only satisfy itself that the appeal is not frivolous, which responsibility for merits belongs to the appellate court.

p. 3

Legal principles established

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  • An arguable point does not mean a point that will succeed once fully ventilated; the trial court need only examine whether the intended appeal is frivolous
  • In stay applications the court must strike a balance between the applicant's right of appeal and the successful litigant's right to enjoy the fruits of judgment
  • In cases where the subject of the appeal is a cash award, the claimant's ability to repay becomes a significant question

Court orders

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  1. 1.The Respondent shall release to the Claimant the equivalent of 50% of the decretal sum within the next 14 days from the date of this ruling
  2. 2.The balance, being the equivalent of 50% of the decretal sum shall be secured by a bank guarantee to be perfected within the next 30 days from the date of this ruling
  3. 3.Failure to observe any of the conditions of stay set out above shall lead to an automatic lapse of the stay hereby granted
  4. 4.The costs of this application shall be costs in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Industrial Court ActSection 3

Cases cited (5)

  • Reliance Bank Limited Vs Noriake Investments Limited
    [2002] 1EA 227 (CAK)
  • Abel Okoth Okello Vs Kenya Medical Research Institute (Kemri)
    [2014] eKLR
  • Syner-Med Pharmaceuticals Ltd v Glaxo Group Limited
    [2010] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Michael Kiboi Gatumia v Mastermind Tobacco (K) Limited
    [2013] eKLR
Jurisdiction invoked
Inherent discretion under Order 42 Rule 6 of the Civil Procedure Rules; principal objective under Section 3 of the Industrial Court 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, "Koki Muia v Samsung Electronics East Africa Ltd [2015] KEELRC 554 (KLR)", Case Analysis (2015). Case No. 937 of 2015 (interlocutory application arising from judgment delivered 23rd July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/554/eng@2015-08-21

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