Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2015] KEELRC 1550 (KLR)

Bakery, Confectionery, Food Manufacturing & Allied Workers Union v The Wrigley Company (E.A) Limited [2015] KEELRC 1550 (KLR)

Employment and Labour Relations Court
Invalid Date
730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
This was an application under Order 42 Rule 6 of the Civil Procedure Rules, 2010 for stay of execution of a judgment delivered on 10th November 2014, pending the hearing and determination of an appeal, in an employment dispute involving terminal benefits of Ksh.922,480.00. The Applicant, supported by the affidavit of Winfred Bundi, argued that it had an arguable appeal, would suffer substantial loss if stay was not granted, and that the application was brought without undue delay. The Claimant/Respondent opposed the application through the Replying Affidavit of Francis Ogutu, contending that the Applicant had not demonstrated substantial loss, had not offered security for due performance of the decree, and had been indolent, filing the application many months after judgment. The Respondent relied on authority that mere allegations that the decretal sum is large do not establish substantial loss, particularly where the terminal benefits relate to services already rendered over many years. The court framed the test as the three inseverable conditions in Order 42 Rule 6, and held that the burden lay on the Applicant to show that the Respondent was unlikely to restitute the decretal amount should the appeal succeed. Finding that the Applicant had not discharged this onus, and that although the appeal was arguable it had not been shown that payment would render the appeal nugatory, the court held that even an offer of security could not balance the scales in this long protracted matter. The application was disallowed with costs, permitting the grievant to enjoy terminal benefits he had waited many years to receive.

Key legal issues

#
01

Substantial loss as a condition for stay of execution pending appeal

Holding

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

Reasoning

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.

p. 2
02

Undue delay and indolence in bringing the application

Holding

The Respondent argued, and the court accepted in weighing the equities, that the application was brought after inordinate delay in a long protracted matter

Reasoning

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.

p. 2
03

Whether arguability of the appeal and offer of security suffice for stay

Holding

No - even if security had been offered, it would not suffice to balance the scales of justice in this protracted matter

Reasoning

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.

p. 2

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. 1.The application for stay of execution pending appeal is disallowed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (5)

  • Zacharia Mboni & Another V. Rajiendia Ratilal Sanghaw & Others
    (2014) eKLR
  • Mukuna V. Abuoga
    (1988) eKLR 645
  • Trust Bank Limited V. Ajay Shah & 3 Others
  • Republic V. The Commissioner for Enforcement and Investigations exparte Wananchi Group Kenya Limited
    (2014) eKLR
  • Kenneth Bundi Kabute & 2 Others V. Daniel Njagi David
    (2007) eKLR
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.