Bakery, Confectionery, Food Manufacturing & Allied Workers Union v The Wrigley Company (E.A) Limited [2015] KEELRC 1550 (KLR)
The bottom line
#A Kenyan employment court refused to pause payment of terminal benefits because the employer could not prove it would lose the money if its appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as a condition for stay of execution pending appeal
The Applicant failed to discharge the onus of demonstrating substantial loss; a mere allegation that it would not recover the decretal sum of Ksh.922,480.00 from the Claimant does not suffice
The court applied Order 42 Rule 6 as explained in Zacharia Mboni and Mukuna v. Abuoga, holding the three ingredients inseparable. It placed the burden squarely on the Applicant to show the Respondent is unlikely to restitute the decretal amount. Relying on the Odunga quote, the court found that merely stating the decretal sum is a lot of money is insufficient; the Applicant showed no specific damages. Terminal benefits related to years of service already rendered, tipping the scales toward the Claimant.
Undue delay and indolence in bringing the application
The Respondent argued, and the court accepted in weighing the equities, that the application was brought after inordinate delay in a long protracted matter
The Respondent submitted that the judgment on liability had been delivered long before the application, that the Applicant need not have waited for judgment on quantum to note an appeal, and that the delay was inordinate and calculated to deny the Claimant timely justice. The court factored the protracted nature of the matter into the balancing exercise, tilting the scales of justice in favour of the grievant enjoying long-awaited terminal benefits.
Whether arguability of the appeal and offer of security suffice for stay
No - even if security had been offered, it would not suffice to balance the scales of justice in this protracted matter
The court accepted that the appeal was arguable but held that arguability alone does not establish that payment of the decree would render the appeal nugatory. Because the decretal amount comprised terminal benefits for services rendered over many years, and the Applicant had not shown inability of the Respondent to restitute, security could not cure the failure to demonstrate substantial loss. The application was therefore disallowed with costs.
Legal principles established
#- The burden is on the Applicant for stay of execution to demonstrate that the Respondent is unlikely to restitute the decretal amount if the appeal is successful
- The three conditions for stay of execution under Order 42 Rule 6 are inseverable and must all be satisfied
- An arguable appeal alone does not warrant stay where the decree holder has waited long for terminal benefits for services already rendered
Court orders
#- 1.The application for stay of execution pending appeal is disallowed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery, Confectionery, Food Manufacturing & Allied Workers Union v The Wrigley Company (E.A) Limited [2015] KEELRC 1550 (KLR)", Case Analysis (). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1550/eng@2015-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.