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ELRCPartially Allowed· [2016] KEELRC 460 (KLR)

J M M & 2 others v The Registered Trustees of The Anglican Church of Kenya [2016] KEELRC 460 (KLR)

Industrial Court (Employment and Labour Relations Court)
30 September 2016
4,085 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that reinstated clergy return to work immediately, even while the church appeals, though part of the money award was paused.

What this practically means

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Executive summary

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This is a ruling on the respondent's notice of motion dated 19.09.2016 seeking stay of execution of the judgment delivered on 09.09.2016, by which each of three claimants, clergy removed from service by suspension or withdrawal/cancellation of their licence to officiate, was granted reinstatement with full pay, accrued salary arrears, monetary awards and Kshs.2,000,000.00 each for psychological trauma. The respondent, invoking the Industrial Court Act and offering to deposit the decretal sum in a joint interest-earning account, sought stay pending an intended appeal on grounds that it was not the employer of Anglican Church clergy and that the damages award was excessive. The claimants opposed, arguing there was no arguable appeal and that the application sought to perpetuate injustice. The court, applying Order 46 Rule 6 of the Civil Procedure Rules, found the application timely and security offered, and separated the decree: the reinstatement orders were held not amenable to stay because a reinstatement order is self-executory and immediate; staying it would amount to granting the final relief sought in the intended appeal and would not preserve the status quo; and the employer retains the power to lawfully terminate in compliance with the order, unlike the employee who cannot mitigate a lost right to work. Only the Kshs.2,000,000.00-per-claimant awards for psychological trauma were stayed, conditional on the respondent depositing Kshs.6,000,000.00 by 01.11.2016 in a joint interest-earning account, failing which the claimants may execute. Each party to bear their own costs of the application.

Key legal issues

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01

Whether an order of reinstatement can be stayed pending appeal

Holding

A reinstatement order is not amenable to stay of execution pending appeal: it is self-executory, staying it would grant the final relief sought in the appeal rather than preserve the status quo, and it would imbalance the parties' ability to mitigate.

Reasoning

The court reasoned that reinstatement restores the employee immediately to the position held before removal, so there is nothing to stay that would preserve the status quo. Citing its own ruling in Aggrey Lukorito Wasike, interim-relief principles from East African Portland Cement and the Court of Appeal in Mugenda and Vivo Energy, and Mwilu JA's dissent in Co-operative Bank v BIFU (right to work), the court held that staying reinstatement would achieve the respondent's desired appellate outcome at the interlocutory stage and leave the employee without reciprocal mitigation.

p. 3
02

Whether the monetary award of Kshs.2,000,000.00 per claimant for psychological trauma may be stayed

Holding

The award may be stayed pending appeal subject to security, being a substantial money decree whose execution might cause substantial loss if the appeal succeeds and recovery against the claimants proves impossible.

Reasoning

The court treated the decree as separable. The substantial money award for psychological trauma was amenable to conditional stay under Order 46 Rule 6, the application having been made without undue delay and security offered; the court granted stay conditional on the deposit of Kshs.6,000,000.00 in a joint interest-earning account by 01.11.2016.

p. 3

Legal principles established

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  • An order of reinstatement is self-executory, takes effect immediately, and is not amenable to a stay of execution pending appeal.
  • Stay of a reinstatement order would amount to the final orders sought in the appeal and is inconsistent with the principles governing interim orders.
  • An employer may lawfully terminate employment in compliance with a reinstatement order, whereas a stayed reinstatement leaves the employee without a ready opportunity to mitigate loss of the right to work.

Court orders

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  1. 1.Orders (a), (b) and (c) in the judgment (reinstatement and related payments) shall not be subject to a stay of execution pending the intended appeal
  2. 2.Order (d) shall not be stayed in so far as the respondent shall pay the 1st claimant Kshs.224,996.00, the 2nd claimant Kshs.437,780.00, and the 3rd claimant Kshs.219,814.00 by 01.12.2016 failing interest at court rates
  3. 3.Stay of execution of order (d) in so far as the respondent shall pay each claimant Kshs.2,000,000.00 for psychological trauma by 01.12.2016 failing interest at court rates
  4. 4.The stay of the Kshs.2,000,000.00 awards is conditional on the respondent depositing Kshs.6,000,000.00 by 01.11.2016 in an interest-earning account in the joint names of the parties' advocates; failing which the claimants may execute in the usual manner
  5. 5.Parties to bear their own costs of the application

Authorities

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Legislation

  • Industrial Court ActSections 12(3)(viii) and (4), 17, 20
  • Civil Procedure RulesOrder 46 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesSection 2 (definition of 'suit')
  • Court of Appeal RulesRule 5(2)
  • Civil Procedure ActCap. 21
  • Constitution of KenyaArticle 2(6)
  • Universal Declaration of Human RightsArticle 23(1)

Cases cited (8)

  • Aggrey Lukorito Wasike -Versus- Kenya Power and Lighting Company Limited
    [2016]eKLR
  • East African Portland Cement Company Limited - Versus- Attorney General & Another
    [2013]eKLR
  • Olive Mwihaki Mugenda & Another -Versus- Okiya Omtata Okoiti & 4 Others
    [2016]eKLR
  • Vivo Energy Kenya Limited -Versus- Maloba Petrol Station Limited & 3 Others
    [2015]eKLR
  • Stephen Kipkebut t/a Riverside Lodge and Rooms -Versus- Naftali Ogola
    [2009]eKLR
  • Mrao Limited-Versus- First American Bank of Kenya Limited & 2 Others
    (2003)KLR 125
  • Co-operative Bank of Kenya Limited-Versus-Banking Insurance & Finance Union (Kenya)
    [2015]eKLR
  • Patrick Njuguna Kariuki-Versus-Del Monte (K) Limited
    [2012]eKLR
Jurisdiction invoked
Sections 12(3)(viii) and (4), 17 and 20 of the Industrial Court Act, 2011; Order 46 Rule 6 (and Order 42 Rule 6) of the Civil Procedure Rules

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, "J M M & 2 others v The Registered Trustees of The Anglican Church of Kenya [2016] KEELRC 460 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/460/eng@2016-09-30

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