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ELRCDismissednull (not stated in the judgment; decided as notice of motion dated 9th October 2015 and 13th October 2015)· [2016] KEELRC 1026 (KLR)

Maureen Homem v Bog Arya Vedic School & another [2016] KEELRC 1026 (KLR)

Employment and Labour Relations Court
17 June 2016
MNMathews Nderi Nduma
1,114 words in judgment
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The bottom line

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A Kenyan employment court refused to pause a Kshs 2.8 million award because the employer waited six months to apply for a stay.

What this practically means

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Executive summary

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The respondent in an employment suit applied, by two consolidated notices of motion dated 9th and 13th October 2015, for stay of execution of a decree of Kshs.2,795,426.00 pending Civil Appeal No. 2539 of 2015 before the Court of Appeal in Nairobi. The applicant, dissatisfied with a judgment delivered by Nduma J. on 24th April 2015, contended that the parties had agreed the file be forwarded to Mombasa for Rika J., the judge who had heard the matter before transfer, to write the judgment, and that the judgment should be set aside and the file sent to the trial judge. The applicant offered security by depositing the decretal sum and costs. The claimant opposed, arguing the applications were filed after inordinate delay, the supporting affidavits were defective, no consent for transfer existed, and she had ample means (rental income from flats along Ngong Road) to refund the decretal sum if the appeal succeeded. The court framed three issues: delay, arguability of the appeal, and nugatory-ness. It found the six-month delay, coming only after execution commenced, inordinate and unexplained. On arguability, the sole complaint - that judgment was not made by the trial judge - was a matter for setting aside or review under rule 32 of the ELRC (Procedure) Rules 2010, not an appeal, and the decree covered only proved terminal benefits, not compensation damages. As to nugatory-ness, the claimant demonstrated capacity to refund. The court held the claimant should enjoy the fruits of her judgment and dismissed the application. Dated and delivered at Nairobi on 17th June 2016 by Mathews Nderi Nduma, Principal Judge.

Key legal issues

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01

Whether the application for stay was brought without undue delay

Holding

The application was brought after inordinate and unexplained delay of six months, after execution had commenced

Reasoning

Judgment was delivered on 23rd April 2015 but the application was filed on 9th October 2015, six months later and only after the claimant commenced execution. No explanation for the delay was offered. The court found the delay inordinate and prejudicial to a decree holder's legitimate expectation to enjoy the fruits of judgment.

p. 2
02

Whether the applicant has an arguable appeal

Holding

No arguable appeal established; the sole complaint is a matter for review or setting aside, not appeal, and the award was confined to proved terminal benefits

Reasoning

The only ground of dissatisfaction was that the judgment was not made by the trial judge Rika J. following his transfer. The court held this complaint belongs under rule 32 of the ELRC (Procedure) Rules 2010. Further, the decree was for terminal benefits proved on balance of probability, not compensation damages, weakening the appeal's arguability.

p. 3
03

Whether the appeal would be rendered nugatory if stay is not granted

Holding

No, because the claimant demonstrated she has the means to refund the decretal sum if the appeal succeeds

Reasoning

The claimant deponed that she is of sound mind, lives in her own house along Ngong Road, and enjoys substantial rental income from flats, giving her adequate financial ability to refund the Kshs.2,795,426.00 decretal sum. The court accepted this, finding no nugatory-outcome risk and favouring the decree holder on the balance of convenience.

p. 3

Legal principles established

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  • An application for stay of execution must be brought without unreasonable delay; unexplained delay of six months, especially after execution has commenced, is inordinate and prejudicial to the decree holder
  • A complaint that judgment was made by a judge other than the one who heard the matter is a matter for setting aside or review, not a ground of appeal
  • A party seeking stay must demonstrate an arguable appeal and that the appeal would be rendered nugatory; where the decretal sum is limited to proved terminal benefits and the decree holder has means to refund, the appeal will not be rendered nugatory

Court orders

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  1. 1.Application for stay of execution of the decree pending appeal dismissed; claimant allowed to enjoy the fruits of her judgment (no substantive stay order issued)

Authorities

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Legislation

  • Employment and Labour Relations (Procedure) Rules 2010rule 32
Jurisdiction invoked
Employment and Labour Relations (Procedure) Rules 2010; inherent jurisdiction to grant stay of execution pending 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, "Maureen Homem v Bog Arya Vedic School & another [2016] KEELRC 1026 (KLR)", Case Analysis (2016). null (not stated in the judgment; decided as notice of motion dated 9th October 2015 and 13th October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1026/eng@2016-06-17

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