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ELRCPartially AllowedNotice of Motion dated 15th August, 2016· [2016] KEELRC 513 (KLR)

John Wafula Simiyu v Star Publications Limited [2016] KEELRC 513 (KLR)

Employment and Labour Relations Court
28 September 2016
DMD.K. Njagi Marete
2,358 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15th August 2016 in which the respondent/applicant, the employer against whom a judgment of Kshs.660,000 (one month's salary in lieu of notice and ten months' compensation for unlawful termination) was delivered by Marete J on 17th June 2016, sought stay of execution pending an intended appeal. The applicant argued that the claimant abandoned the notice-pay claim in submissions after acknowledging in cross-examination that he was paid, giving an arguable ground of appeal; that the claimant prematurely levied execution within the thirty-day stay period via a proclamation of 26th July 2016 and without a decree; and that excessive auctioneer fees including a commission of Kshs.86,711 were being levied. The claimant opposed, contending no appeal was on record (only a draft, undated and unsigned memorandum), that the notice-pay issue was a matter for review under rules 32 and 33, that no substantial loss or security was demonstrated, and that the Deputy Registrar's interim stay order was itself invalid. The court agreed that the Deputy Registrar lacks jurisdiction to stay a judge's judgment, following Francis Kimutai Bii v Kaisugu (Kenya) Ltd, holding the registrar's office is administrative only and that order void ab initio. On the stay itself, the court found all four limbs satisfied: an arguable appeal, an offer of security, no undue delay, and substantial loss. The application was allowed with the applicant to deposit Kshs.660,000 in court as security, and costs borne equally by the parties.

Key legal issues

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01

Jurisdiction of the Deputy Registrar to grant stay of execution

Holding

The Deputy Registrar lacks jurisdiction and competence to issue orders for stay of execution of a judgment of the court; such orders are void ab initio and not extendable.

Reasoning

The court agreed with the claimant's submission that the Deputy Registrar exceeded her mandate. Relying on Francis Kimutai Bii v Kaisugu (Kenya) Ltd, the court held that a Registrar or Deputy Registrar is mandated only to undertake administrative functions of the court, and entry of judgments or grant of stay is strictly the province of judges.

p. 4
02

Whether the criteria for stay of execution pending intended appeal were met

Holding

The application satisfied the four-limb test: arguable case, offer of security, no undue delay, and substantial loss.

Reasoning

The court found the respondent/applicant demonstrated an arguable case on appeal, notably the award of one month's salary in lieu of notice despite the claimant's acknowledgment in cross-examination that he was paid. The applicant offered security and brought the application without delay, satisfying all four limbs.

p. 5

Legal principles established

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  • A Deputy Registrar of the court lacks jurisdiction and competence to issue orders for stay of execution; the office is limited to administrative functions.
  • Grant of stay of execution requires demonstration of an arguable case, offer of security, and absence of undue delay.

Court orders

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  1. 1.Application for stay of execution allowed
  2. 2.Respondent/applicant to deposit in court Kshs. 660,000 as security pending hearing and determination of the intended appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 41 Rule 4
  • Civil Procedure RulesOrder 42 rule 6
  • Employment and Labour Relations Court (Procedure) Rulesrules 32 and 33
  • Employment and Labour Relations Court ActSection 9(1)(a), (b), (c) and (d)
  • Auctioneers Act

Cases cited (10)

  • Global Tours & Travels Limited, Nairobi HC Winding Up Cause No.43/200
  • Kenya Power & Lighting Co. Ltd vs. Esther Wanjiru Wokabi
    (2014) eKLR
  • Carter & Sons Ltd V. Deposit Protection Fund Board & Two Others
    Civil Appeal No. 291 of 1997
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & Another
    (2015) eKLR
  • John Mwangi Ndiritu vs Joseph Ndiritu Wamathai
    (2016) eKLR
  • Antoine Ndiaye vs African Virtual University
    (2015) eKLR
  • Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1KAR 1018
  • Tropical Commodities Suppliers Ltd & others vs. International Credit Bank Ltd (in liquidation)
  • James Wangalwa & Another vs Agnes Naliaka Chesoto
    Bungoma HC Misc Application No 42 of 2011
  • Francis Kimutai Bii Vs. Kaisugu (Kenya) Ltd
    2016 eKLR
Jurisdiction invoked
Discretionary powers of the court to grant stay of execution pending intended appeal

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, "John Wafula Simiyu v Star Publications Limited [2016] KEELRC 513 (KLR)", Case Analysis (2016). Notice of Motion dated 15th August, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/513/eng@2016-09-28

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