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ELRCDismissedNot stated in judgment text· [2015] KEELRC 1521 (KLR)

Njuguna v Attorney General & another (Petition 17 of 2013) [2015] KEELRC 1521 (KLR)

Employment and Labour Relations Court
2 October 2015
1,926 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 its judgment because the losing party waited 18 months too long to ask.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 24th June 2015 by the 2nd Respondent/Applicant, a constitutional commission, seeking stay of execution of the Judgment and Decree of 28th January 2014 pending an intended appeal to the Court of Appeal. Prayers for leave to file a Notice of Appeal out of time were withdrawn before the hearing. The judgment had been delivered in favour of the Petitioner, a magistrate dismissed on 23rd June 2008 while serving as Ag. Senior Principal Magistrate at Chuka Law Courts. The Applicant explained the delay through its change from the Hon. Attorney General to Issa & Company Advocates and late receipt of the record. The Petitioner opposed, arguing the delay was inordinate, the Applicant was in contempt of the reinstatement orders, and the application was intended to delay the judgment. The court applied the Reliance Bank v Norlake Investments and Halai v Thornton & Turpin principles: arguability, nugatory-ness, absence of unreasonable delay, and security. It held the delay of one year and six months was so inordinate that no reasonable court would condone it, particularly given the Applicant's failure to implement the judgment; that the appeal would not be rendered nugatory since the Petitioner would be paid for services upon re-engagement; and that the balance of convenience favoured refusing stay because the Petitioner was approaching retirement at sixty years. The application was dismissed with costs to the Petitioner/Respondent.

Key legal issues

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01

Whether the delay in bringing the stay application was excusable

Holding

The delay of one year and six months was inordinate and could not be condoned, especially given the Respondent's wilful or negligent failure to implement the judgment

Reasoning

The 2nd Respondent was at all material times ably represented by the Hon. Attorney General, who did not depose to any affidavit explaining the delay. The application was filed by Issa & Company Advocates before the firm was properly on record, though the court declined to find it incompetent on that basis alone since this Court's rules are silent. The 18-month delay was fatal to the application.

p. 4
02

Whether the intended appeal would be rendered nugatory without a stay

Holding

The Court was not satisfied the appeal would be rendered nugatory; the Petitioner would be paid for services rendered upon re-engagement

Reasoning

The court found that re-engagement of the Petitioner, ordered in the judgment, would not be undone by payment; Telkom Kenya Ltd v Paul Ngotwa affirms the power of the Court to order reinstatement. A stay would therefore not preserve anything capable of being restored on appeal.

p. 5

Legal principles established

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  • An applicant for stay of execution pending appeal must establish an arguable appeal, that the appeal would be rendered nugatory absent stay, that the application was brought without unreasonable delay, and in certain cases furnish security
  • Where a court has ordered reinstatement of an employee nearing retirement age, the balance of convenience favours refusing a stay because a stay would defeat the judgment

Court orders

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  1. 1.The Application for stay of execution of the Judgment and Decree of 28th January 2014 is dismissed
  2. 2.Costs of the application to the Petitioner / Respondent
Jurisdiction invoked
Stay of execution of this Court's judgment pending intended appeal to the Court of Appeal; the court applied its inherent discretion and the overriding objective

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, "Njuguna v Attorney General & another (Petition 17 of 2013) [2015] KEELRC 1521 (KLR)", Case Analysis (2015). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1521/eng@2015-10-02

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