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ELRCPartially AllowedCause No 1844 of 2011· [2015] KEELRC 1045 (KLR)

Rebecca Nduta Ngure v Invesco Assurance Company Limited [2015] KEELRC 1045 (KLR)

Employment and Labour Relations Court
29 May 2015
1,218 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 split the difference: the employer paid half the award now and deposited the rest while its stalled appeal dragged on.

What this practically means

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Executive summary

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The Respondent/Applicant, a company that had been placed under statutory management in February 2008, moved the Employment and Labour Relations Court for stay of execution of the judgment delivered on 2nd October 2014 awarding the Claimant terminal benefits exceeding Kshs 4 million, including unpaid salary, leave, pension deductions, airtime, mileage, Sacco contributions, medical expenses and compensation. The applicant intended to appeal on two grounds: that the suit was statute-barred under Section 90 of the Employment Act, and that employment was automatically terminated by operation of law upon appointment of a statutory manager. Both grounds had earlier been raised in a preliminary objection dismissed on 10th April 2013, against which a Notice of Appeal was filed. The court framed four issues: arguability of the appeal, nugatory value, undue delay, and balance of convenience. It found the appeal arguable but noted it had not been prosecuted for over two years and that the stay application was filed three months after judgment. The applicant, a large profit-making company that had since recalled ex-employees and settled similar claims, failed to demonstrate loss from payment. Weighing that the claimant had waited since February 2008 for dues earned through work performed during the insolvency, the court declined a blanket stay. It instead ordered conditional security: payment of 50% of the decretal sum to the claimant within 30 days and deposit of the remaining 50% in court pending appeal, failing which execution would issue. No orders were made in respect of the 42 similar suits, which were left to take their normal course.

Key legal issues

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01

Arguable appeal

Holding

The appeal noted on 10th April 2013 was arguable on the two grounds raised (limitation under Section 90 of the Employment Act and automatic termination by operation of law upon statutory management)

Reasoning

The court declined to delve into the merits, noting the grounds were previously raised in a preliminary objection dismissed on 10th April 2013. It found the two grounds on the face of the application sufficient to satisfy the arguability threshold for stay pending appeal.

p. 2
02

Undue delay and non-prosecution of the appeal

Holding

The appeal had not been prosecuted expeditiously; no steps had been taken more than two years after noting the appeal

Reasoning

The Notice of Appeal was filed on 15th April 2013 but the applicant could not show any steps to prosecute the appeal. The stay application itself was filed on 3rd February 2015, three months after judgment. This weighed against granting a full stay.

p. 3
03

Nugatory value and balance of convenience

Holding

The balance of convenience favoured partial release of the decretal sum to the claimant

Reasoning

The applicant, a large profit-making company, did not demonstrate what loss it would suffer if it paid the decretal amount. Substantial portions of the award were earned salary and allowances unpaid through the applicant's insolvency, and the applicant had settled similar claims of other ex-employees.

p. 3
04

Extension of stay to the 42 similar test suits

Holding

The court refused to stay execution or proceedings in the 42 other suits

Reasoning

Although this was a test suit whose findings applied to the 42 other suits to the extent facts and law were similar, the court limited its orders to this suit and left the others to take their normal course.

p. 3

Legal principles established

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  • Where an arguable appeal exists but the appeal has not been prosecuted expeditiously, the court may order conditional security - part payment of the decretum with the balance deposited in court - instead of a full stay

Court orders

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  1. 1.The Respondent to pay the Claimant 50% of the decretal sum within 30 days from the date of this ruling
  2. 2.The Respondent to deposit the remaining 50% with the court within 30 days pending the hearing and determination of the intended Appeal
  3. 3.Court makes no orders in regard to the 42 pending cases and same to take their normal course
  4. 4.In the event orders (i) and (ii) are not complied with, execution of the judgment and all consequential orders to follow

Authorities

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Legislation

  • Employment ActSection 90
On appeal from
Not applicable - this is a first-instance application for stay of execution of this court's own judgment
Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending appeal to the Court of Appeal (statutory provision not cited in the judgment)

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, "Rebecca Nduta Ngure v Invesco Assurance Company Limited [2015] KEELRC 1045 (KLR)", Case Analysis (2015). Cause No 1844 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1045/eng@2015-05-29

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