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ELRCPartially AllowedNot stated in the extract (notice of motion filed 5th May 2016)· [2017] KEELRC 1946 (KLR)

Daniel Githinji Waiganjo v Kenpipe Co-operative Savings & Credit Society Limited [2017] KEELRC 1946 (KLR)

Employment and Labour Relations Court (Industrial Court)
27 January 2017
616 words in judgment
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The bottom line

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A Kenyan employment court allowed a delayed stay of execution, but only if the losing party paid part of the award upfront and secured the rest.

What this practically means

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Executive summary

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The respondent/applicant filed a notice of motion on 5th May 2016 seeking a stay of execution of a judgment delivered by Lady Justice Maureen Onyango on 30th September 2014 pending appeal. The applicant argued that the appeal would be rendered nugatory if the decree of Kshs.2,365,312 were paid out, that the claimant might be unable to refund such a colossal sum, and that the application was brought without unreasonable delay, with an offer to furnish security. The claimant opposed the application by a replying affidavit filed on 17th May 2016, contending that the application was brought over seven months after judgment, only when execution was imminent; that the delay was inordinate and calculated to delay justice; and that the applicant had shown neither an arguable appeal nor substantial loss. Relying on Butt v Rent Restriction Tribunal and Wilson v Church (No.2), the court held that although there was inordinate delay in bringing the application, it would balance the applicant's right of appeal and the overriding obligation that justice be done without inordinate delay. Noting that the decretal amount was substantial and the claimant might be unable to refund it if the appeal succeeded, the court allowed the stay on conditions: payment of one quarter of the decretal sum to the claimant within fourteen days, deposit of the balance in an interest-earning joint account of the advocates within thirty days, and automatic lapse of the stay with execution to issue on default of either condition. The ruling was dated and delivered at Nairobi on 27th January 2017 by Mathews Nderi Nduma, Principal Judge.

Key legal issues

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01

Stay of execution pending appeal and inordinate delay

Holding

Stay granted despite inordinate delay because the decretal amount was substantial and the claimant might be unable to refund it if the appeal succeeded

Reasoning

The court found the delay of over seven months inordinate. It nonetheless balanced the applicant's right of appeal against the obligation that justice be done without inordinate delay, and noted the substantial decretal sum of Kshs.2,365,312 and the difficulty of recovering it from the claimant if paid out. It therefore granted a conditional stay rather than an unconditional one.

p. 2
02

Conditions attaching to a stay

Holding

Stay conditional on payment of a quarter of the decretal sum and deposit of the balance in a joint interest-earning account, failing which the stay lapses

Reasoning

To protect the claimant's interest in the decree while preserving the applicant's appeal, the court imposed staged payment conditions: one quarter of the decretal sum within fourteen days and the balance in a joint interest-earning account of both advocates within thirty days. Default of either condition causes the stay to lapse automatically and execution to issue.

p. 2

Legal principles established

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  • Grant or refusal of stay of execution is discretionary and must be exercised so as not to render a successful appeal nugatory

Court orders

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  1. 1.Stay of execution granted subject to conditions: applicant to pay one quarter of the decretal sum to the claimant within fourteen (14) days of the ruling
  2. 2.Balance of the decretal sum to be deposited in an interest-earning joint account of the advocates for the applicant and the claimant within thirty (30) days
  3. 3.In default of either condition, the order for stay of execution to automatically lapse and execution to issue

Authorities

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Cases cited (2)

  • Butt -Vs- Rent Restriction Tribunal
    Court of Appeal Civil Application No. NAI 6 of 1979
  • Wilson Vs. Church (No.2)
    12 ChD [1979] 454
Jurisdiction invoked
Inherent discretion to stay execution pending appeal (note: the notice of motion sought stay of execution of a judgment of Lady Justice Maureen Onyango delivered 30th September 2014 pending hearing and determination of an 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, "Daniel Githinji Waiganjo v Kenpipe Co-operative Savings & Credit Society Limited [2017] KEELRC 1946 (KLR)", Case Analysis (2017). Not stated in the extract (notice of motion filed 5th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1946/eng@2017-01-27

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