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ELRCDismissedNot stated in judgment (the underlying ELRC case number is not reproduced)· [2016] KEELRC 862 (KLR)

Rachel Carol Atamba v Masinde Muliro University of Science and Technology [2016] KEELRC 862 (KLR)

Employment and Labour Relations Court
16 June 2016
MOMAUREEN ONYANGO
816 words in judgment
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The bottom line

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A Kenyan employment court refused to pause a Kshs.500,000 damages payment because the employer holding the claimant's salary could easily recover it if its appeal succeeded.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (Maureen Onyango J) disposes of a motion dated 10th March, 2016 in which the Respondent in the main suit - the Claimant's employer, acting through the affidavit of Deputy Vice Chancellor Professor Joseph Rotich - sought a temporary and pending-appeal stay of execution of the order to pay Kshs.500,000 damages contained in a judgment delivered on 17th December, 2015. That earlier judgment had directed the immediate redeployment of the Claimant to the position of head of department without reduction of rank, remuneration or allowances, and awarded damages of Shs.500,000. The applicant argued that its intended appeal would be rendered nugatory and that it might not recover the decretal sum if the appeal succeeded, and that the application was made without undue delay. The Claimant replied that the redeployment order had already been complied with on 23rd February, 2016, leaving only the damages unpaid, and exhibited a payslip showing a gross salary of Shs.409,461.00. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principles in James Wangalwa v Agness Naliaka Cheseto, holding that execution is a lawful process and does not by itself amount to substantial loss. Since the Claimant's salary was in the hands of the applicant employer, any repayment would be easy and no substantial loss was demonstrated. The court found the application to be made in bad faith and an abuse of court process, dismissed it, and awarded costs to the Claimant.

Key legal issues

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01

Whether the applicant would suffer substantial loss if execution of the Kshs.500,000 damages award proceeds pending appeal

Holding

No substantial loss established; the Claimant's salary of Shs.409,461 is in the hands of the applicant employer, who could with ease recover the sum should the appeal succeed

Reasoning

The court applied the test in James Wangalwa v Agness Naliaka Cheseto that execution is a lawful process and does not by itself constitute substantial loss. The applicant had to show other factors demonstrating irreparable effect on its essential core as a potential successful appellant. Here the decretal sum is payable out of the Claimant's salary held by the applicant itself, so recovery would be easy. Stay was therefore refused and the application dismissed with costs.

p. 2

Legal principles established

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  • Execution being put in motion is a lawful process and does not by itself amount to substantial loss under Order 42 Rule 6; the applicant must establish other factors showing execution will irreparably affect the essential core of its position as successful party in the appeal
  • Stay under Order 42 Rule 6 is discretionary and requires sufficient cause, substantial loss, application without undue delay, security, and balancing of the parties' interests

Court orders

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  1. 1.The application dated 10th March, 2016 is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • M/s PORTREITZ MATERNITY v JAMES KABIA
  • JAMES WANGALWA & ANOTHER v AGNESS NALIAKA CHESETO
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rachel Carol Atamba v Masinde Muliro University of Science and Technology [2016] KEELRC 862 (KLR)", Case Analysis (2016). Not stated in judgment (the underlying ELRC case number is not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/862/eng@2016-06-16

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