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ELRCPartially AllowedApplication dated 17/4/2015 in Industrial Cause No. 2428 of 2012· [2015] KEELRC 877 (KLR)

Haron Njoroge Gacengechi v Administrator Consolata Institute Of Philosophy [2015] KEELRC 877 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 June 2015
HWHellen Wasilwa
842 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court stayed execution of a Kshs.896,473 award only on condition the employer deposits the money into a joint interest-earning account within 30 days.

What this practically means

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Executive summary

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The Respondent in Industrial Cause No. 2428 of 2012, represented by Geraldo Martinelli, its Assistant Administrator, moved the Industrial Court by Notice of Motion dated 17th April 2015 seeking a temporary and pending-appeal stay of execution of the judgment delivered on 11th March 2015, in which Kshs.896,473 was awarded to the Claimant. The Applicants relied on Articles 159, 162(2) and 164(3) of the Constitution and Sections 12(3) and 17 of the Industrial Court Act 2011, contending they had lodged a Notice of Appeal under Rule 75 of the Court of Appeal Rules, had requested typed proceedings, and that the Claimant had commenced execution by forwarding a draft decree. They argued the appeal was arguable and that the Claimant could not refund the decretal sum, rendering the appeal nugatory. The Claimant opposed the application as an abuse of court process, asserting he had waited for the fruits of his judgment since 2011 and was able and willing to refund the decretal amount if the Court of Appeal ruled against him, being engaged in business in Kenya with traceable assets. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court found the Applicants had not demonstrated substantial loss and had not proposed any security, though they had acted without unreasonable delay. The court conditionally allowed the stay: the decretal sum was to be deposited in a joint interest-earning account in the joint names of counsel within 30 days, failing which execution would issue.

Key legal issues

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Conditions for grant of stay of execution pending appeal

Holding

The court found substantial loss not demonstrated, delay absent, but no security offered; it granted a conditional stay tied to deposit of the decretal sum

Reasoning

The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, which requires the Applicant to show substantial loss, that the application was made without unreasonable delay, and to give security for due performance of the decree. The Applicants approached the court without unreasonable delay but did not demonstrate the substantial loss they stood to suffer, nor did they propose any security. Balancing the parties' interests, the court allowed a stay conditional on deposit of the decretal sum of Kshs.896,473 in a joint interest-earning account within 30 days, with execution to issue in default.

p. 2

Legal principles established

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  • Stay of execution under Order 42 Rule 6(2) requires satisfaction that substantial loss may result, absence of unreasonable delay, and provision of security as the court orders

Court orders

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  1. 1.Stay of execution of the judgment delivered on 11th March 2015 in Industrial Cause No. 2428 of 2012 granted on condition that the decretal sum be deposited in a joint interest-earning account held in the joint names of Counsels for the parties on record within 30 days
  2. 2.In default of the deposit, execution to issue

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 159, 162(2), 164(3)
  • Industrial Court Act, 2011Sections 12(3)(i) & (viii), 17(1) & (2)
  • Industrial Court Procedure RulesRules 16, 27
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal RulesRule 75
Jurisdiction invoked
Articles 159, 162(2) and 164(3) of the Constitution; Sections 12(3)(i) & (viii), 17(1) & (2) of the Industrial Court Act 2011; Rules 16 and 27 of the Industrial Court Procedure Rules

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, "Haron Njoroge Gacengechi v Administrator Consolata Institute Of Philosophy [2015] KEELRC 877 (KLR)", Case Analysis (2015). Application dated 17/4/2015 in Industrial Cause No. 2428 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/877/eng@2015-06-17

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