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ELRCDismissedMotion dated 31 March 2016 (arising from judgment delivered 8 March 2016)· [2016] KEELRC 616 (KLR)

Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR)

Employment and Labour Relations Court
7 October 2016
1,156 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 a judgment because the employer never showed exactly what loss paying the award would cause.

What this practically means

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Executive summary

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This is a ruling by the Employment and Labour Relations Court at Nakuru on a motion by the Respondent seeking stay of execution of a judgment delivered on 8 March 2016, in which the court had found the Claimant's termination unfair and awarded her compensation, earned wages and pay in lieu of notice totalling Kshs 86,655. The Respondent lodged a Notice of Appeal and filed a motion dated 31 March 2016 seeking stay of execution pending the intended appeal. The Claimant opposed, asserting she had assets and could refund the decretal sum, that no substantial loss had been shown, and that the motion was a delaying tactic. The court first clarified that arguability of an intended appeal is not a criterion for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, distinguishing the Court of Appeal authorities relied on by the Respondent, which concern Rule 5(2)(b) of the Court of Appeal Rules. On the applicable principles, the court found no undue delay, as the motion was filed within about a month of judgment, and noted that security had already been dealt with by an ex parte order to deposit the decretal sum. However, the supporting affidavit sworn by Jacqueline Chele nowhere demonstrated the substantial loss the Respondent would suffer. The court, endorsing Odunga J and applying High Court authorities, held that mere assertion that the decretal sum is large is insufficient. It also held, endorsing Emukule J, that inability of a decree holder to refund is not, without more, a ground for stay. The motion was dismissed with costs to the Claimant.

Key legal issues

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01

Relevance of arguability of the intended appeal to stay of execution pending appeal

Holding

Arguability is not a criterion for stay under Order 42 Rule 6; authorities on Rule 5(2)(b) of the Court of Appeal Rules are inapposite

Reasoning

The Respondent relied on Court of Appeal authorities concerning stay under Rule 5(2)(b) of the Court of Appeal Rules, where arguability is a threshold requirement. The court distinguished that jurisdiction from stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, where the applicable principles are substantial loss, delay and security, and declined to consider arguability.

p. 2
02

Whether the Respondent demonstrated substantial loss

Holding

No substantial loss was demonstrated

Reasoning

Endorsing Odunga J in Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd, the court held that substantial loss must come out clearly in the supporting affidavit and the applicant must show the damages it would suffer. The supporting affidavit sworn by Jacqueline Chele nowhere demonstrated the loss the Respondent would be occasioned if stay was denied.

p. 3
03

Whether the decree holder being unable to refund justifies stay

Holding

Inability to refund is not, without more, a good reason for stay

Reasoning

The Respondent contended it would be unable to recover the decretal sum if paid. The court, endorsing Emukule J in Cosmas Kipkoech Sigei v Madrugada Ltd, held that a stay will not be made on the ground that the decree holder is a pauper. The Claimant had also stated she had assets and could refund the decretal sum.

p. 3
04

Delay and security

Holding

The motion was brought without undue delay and security had already been ordered

Reasoning

The motion was lodged within about a month of the judgment, which the court found was not undue time. The Respondent had offered and the court had ordered at the ex parte stage that the decretal sum be deposited in court, so nothing substantial turned on the security principle, though no receipt of payment was on file.

p. 2

Legal principles established

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  • Whether a party has an arguable appeal is not a factor in an application for stay of execution pending appeal in the High Court or the ELRC
  • Substantial loss must be demonstrated clearly in the supporting affidavit; it is not sufficient to merely state that the decretal sum is a lot of money
  • A stay will not be granted merely because the decree holder may be unable to refund the decretal sum if the appeal succeeds

Court orders

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  1. 1.The Court declines to grant the orders sought in the motion dated 31 March 2016
  2. 2.The motion is dismissed with costs to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (12)

  • Mukuma v Abuoga
    (1988) KLR 645
  • Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others
    (2013) eKLR
  • Tabro Transporters Ltd v Absalom Dova Lumba
    (2012) eKLR
  • Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others
    (2010) eKLR
  • Antoine Ndiaye v African Virtual University
    (2015) eKLR
  • Kenya Commercial Bank Ltd v Hon. Nicholas Ombija
    (2009) eKLR
  • Republic v Kenya Anti-Corruption Commission & 2 others
  • International Laboratory for Research on Animal Diseases v Kinyua
    (1990) 403
  • Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd
    (2014) eKLR
  • Andrew Kuria Njuguna v Rose Kuria
    Nairobi Civil Case No. 224 of 2001
  • Machira t/a Machira & Co. Advocates v East African Standard (No. 2)
    (2002) KLR 63
  • Cosmas Kipkoech Sigei v Madrugada Ltd & Ar
    (2010) eKLR
Jurisdiction invoked
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, "Mary Muthoni v Kenya Nut Company Ltd [2016] KEELRC 616 (KLR)", Case Analysis (2016). Motion dated 31 March 2016 (arising from judgment delivered 8 March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/616/eng@2016-10-07

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