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ELRCDismissedNot stated in judgment (Notice of Motion dated 23rd December, 2014)· [2015] KEELRC 1395 (KLR)

Catherine Monthe Nzila v Kenya Commercial Bank Limited [2015] KEELRC 1395 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 February 2015
JAJ. N. Abuodha
1,166 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 refused to pause a Kshs.3.7 million award because the bank applicant offered no security, showing even wealthy litigants must follow stay-of-execution rules.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 23rd December 2014 in which the applicant, a commercial bank that had lost an employment claim before the Industrial Court and had been ordered to pay about Kshs.3.7 million, sought stay of execution pending appeal, or confirmation of interim orders then in place. Counsel for the applicant (Mr. Ouma) argued that the respondent had filed a Notice of Appeal, that the dismissal of the employee was justified, that payment would amount to unjust enrichment since the respondent was not in employment, and that recovery of the decretal sum would be difficult. Counsel for the respondent (Mr. Kubai) opposed, contending that chances of success were not a ground for stay, that under section 7(2) of the Industrial Court Act appeal lay only on points of law, and that the respondent faced greater hardship. The court applied Order 42 rule 6 of the Civil Procedure Rules, as explained in David Wanjau Muhoro v. Ol Pajeta Ranching Limited, holding that stay requires substantial loss, absence of unreasonable delay and security, and that arguability and nugatory-ness are matters for the Court of Appeal. Although acknowledging the applicant's capacity as a reputable bank to pay, the court held that procedural rules apply equally to all and cannot be waived. Drawing on Kuloba J in East Africa Breweries Ltd v. Castle Brewing Kenya Ltd, the court further declined to stay its own judgment, observing that it is invidious for a trial judge to assess the prospects of an appeal against his own decision. The application was dismissed with costs.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 rule 6 were met

Holding

The application was incompetent because security was not offered notwithstanding the applicant's capacity to pay, and substantial loss was not established

Reasoning

Order 42 rule 6 requires the court to be satisfied that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance of the decree has been given. The court observed that the applicant was a reputable commercial bank presumably capable of settling the Kshs.3.7 million decree, yet no security was offered; the rules apply equally to all and cannot be waived merely because an applicant appears solvent. Arguability and nugatory-ness are matters for the appellate court.

p. 2
02

Whether the trial Judge should stay his own judgment pending appeal

Holding

No - the court saw no reason to stay its own decision, holding that assessment of the appeal's prospects is for the appellate court

Reasoning

The court, following Kuloba J in East Africa Breweries Ltd v Castle Brewing Kenya Ltd, held that it is invidious for a judge to reconsider the merits of his own decision so as to stay it pending appeal. The judge had heard both parties, analysed the evidence and law, and saw no reason to stay the decision, leaving the matter to the appellate court if it deemed fit.

p. 3

Legal principles established

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  • Stay of execution requires substantial loss, absence of unreasonable delay and security; arguability of the appeal or its being rendered nugatory are considerations for the Court of Appeal, not the trial court
  • Procedural rules apply equally to all litigants regardless of their apparent capacity to satisfy a decree
  • A trial Judge should not stay or reconsider his own judgment pending appeal; that power should be a preserve of the appellate court

Court orders

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  1. 1.The Notice of Motion dated 23rd December 2014 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; section 7(2) of the Industrial Court Act referred to by the parties

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, "Catherine Monthe Nzila v Kenya Commercial Bank Limited [2015] KEELRC 1395 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 23rd December, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1395/eng@2015-02-20

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