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ELRCAllowedCause No 2119 of 2014· [2016] KEELRC 1177 (KLR)

Kenya Chemical and Allied Workers Union v East African Portland Cement Company Limited [2016] KEELRC 1177 (KLR)

Employment and Labour Relations Court
6 May 2016
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court paused a Kshs.1 billion judgment against an employer because the money could not be refunded if the appeal succeeded.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) on a Notice of Motion dated 2nd October 2015 in which the Respondent in the main claim sought a stay of execution of the Court's judgment delivered on 6th July 2015, pending an appeal it had filed against that judgment. The application was grounded on the affidavit of the Respondent's Head of Human Resource and Administration, John N. Ole Kimanjoi, and was brought under Articles 159, 162(2) and 164(3) of the Constitution, the Employment and Labour Relations Court Act 2011 and the Industrial Court (Procedure) Rules 2010. The Applicant argued that implementation of the judgment during the pendency of the appeal would render the appeal nugatory, since the Claimant would be unable to refund the decretal sum of over Kshs.1 billion payable as Collective Bargaining Agreement arrears for 2013 to 2015 to over 600 contract staff, whose means to refund were unknown. The draft grounds of appeal alleged that fixed term contract employees' terms had been negotiated outside the CBA since 1961 and that the court below had erred in finding a breach of the CBA and discrimination against fixed term contract staff. The Claimant opposed the application through a replying affidavit sworn on 16th October 2015 by its National Secretary General, contending that the application was an abuse of process, bad in law and without merit, intended only to delay the case. The court, relying on Order 42 Rule 6(b) of the Civil Procedure Rules 2010 on security, held that it would not deny a stay whose effect would be to render the intended appeal nugatory given the colossal sum involved, and allowed the application as prayed, with costs in the cause. The ruling was read in open court on 6th May 2016.

Key legal issues

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Stay of execution pending appeal

Holding

Stay was granted because the decretal sum of over Kshs.1 billion payable to over 600 contract staff could not realistically be recovered if the appeal succeeded, rendering the appeal nugatory.

Reasoning

The court considered the Applicant's averment that implementation of the judgment before the appeal is determined would make the subject matter spent, since the Claimant would be unable to refund the decretal sum of over Kshs.1 billion to over 600 contract staff. Weighing that risk against the absence of demonstrated prejudice to the Claimant, and on the security requirement of Order 42 Rule 6(b), the court found it just to grant the stay as prayed.

p. 3

Legal principles established

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  • A court will not deny a stay whose effect would be to render the intended appeal nugatory, particularly where a colossal sum of money is involved.

Court orders

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  1. 1.Application for stay of execution of the judgment delivered on 6th July 2015 allowed as prayed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 159, 162(2), 164(3)
  • Employment and Labour Relations Court Act 2011Sections 12(3)(i) & (viii), 7(1) & (2)
  • Industrial Court (Procedure) Rules 2010Rule 16
  • Civil Procedure Rules 2010Order 42 Rule 6(b)
Jurisdiction invoked
Articles 159, 162(2) and 164(3) of the Constitution; Sections 12(3)(i) & (viii), 7(1) & (2) of the Employment and Labour Relations Court Act 2011; Rule 16 of the Industrial Court (Procedure) Rules 2010

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, "Kenya Chemical and Allied Workers Union v East African Portland Cement Company Limited [2016] KEELRC 1177 (KLR)", Case Analysis (2016). Cause No 2119 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1177/eng@2016-05-06

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