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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 901 (KLR)

Dominic Muthusi Mbithi v Kenya Post Office Savings Bank [2018] KEELRC 901 (KLR)

Employment and Labour Relations Court
19 October 2018
3,011 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 paused judgment enforcement, but only after the employer paid half the award upfront and secured the rest.

What this practically means

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Executive summary

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This ruling by Onyango J of the Employment and Labour Relations Court at Nairobi, delivered on 19th October 2018, determines the respondent's notice of motion dated 27th February 2018 seeking stay of execution of the judgment of 19th January 2018 delivered by Ndolo J in favour of the claimant, pending an intended appeal to the Court of Appeal. The application was brought under Section 12 of the ELRC Act, Rules 17 and 32 of the ELRC (Procedure) Rules 2016, Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, supported by the affidavit of Peter Kioni, the respondent's Assistant Manager, Legal and Security. The claimant opposed, contending that no substantial loss had been demonstrated, that the application was intended to deny him the fruits of his judgment, and that the respondent had not filed its appeal despite proceedings being ready. The court framed two issues: whether there was delay in filing the appeal, and whether the conditions for stay were satisfied. It found no delay since the notice of appeal was filed six days after judgment, within the 14 days allowed by Rule 75 of the Court of Appeal Rules, and an appeal is deemed filed upon lodging the notice. On substantial loss, applying National Industrial Credit Bank v Aquinas Francis Wasike, the court held that the claimant's failure to contest that he might be unable to refund the decretal sum shifted the evidential burden to him. The court granted stay of execution pending appeal, conditional on the respondent paying 50% of the decretal sum to the claimant and depositing the balance in a joint interest-earning account within 14 days, with costs of the application in the appeal.

Key legal issues

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01

Whether there was unreasonable delay in pursuing the appeal

Holding

There was no delay; the notice of appeal was filed six days after judgment, within the 14 days allowed by Rule 75 of the Court of Appeal Rules, and an appeal is deemed filed once notice of appeal is given

Reasoning

The court applied Order 42 Rule 6(4) which deems an appeal filed when notice of appeal is given. The notice of appeal was lodged on 25th January 2018, six days after the judgment of 19th January 2018, well within the 14-day period under Rule 75 of the Court of Appeal Rules. The claimant's assertion that the respondent deliberately failed to obtain certified proceedings was rejected because the application was filed before the proceedings had been proofread for certification.

p. 4
02

Whether the applicant demonstrated substantial loss sufficient to justify stay

Holding

Substantial loss was demonstrated because the claimant did not contest that he may be unable to refund the decretal sum should the appeal succeed, and the evidential burden shifted to him to show his resources

Reasoning

Relying on National Industrial Credit Bank v Aquinas Francis Wasike, the court held that once an applicant expresses a reasonable fear that the decree holder cannot refund the decretal sum, the evidential burden shifts to the decree holder. The claimant neither contested the respondent's apprehension nor demonstrated ability to refund. Payment of the decretal sum would render the appeal nugatory, and the respondent had offered security.

p. 4
03

Whether security should be a condition of the stay

Holding

Stay granted conditionally: 50% of the decretal sum to be released to the claimant and the balance deposited in a joint interest-earning account

Reasoning

The court balanced the respondent's right of appeal, anchored in Articles 48 and 50 of the Constitution, against the claimant's entitlement to the fruits of his judgment. The respondent had offered security. The court crafted conditional orders releasing half the decretal sum to the claimant while securing the balance in a joint interest-earning account, thereby preserving the appeal without wholly depriving the successful party.

p. 4

Legal principles established

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  • Where an applicant expresses a reasonable fear that the decree holder would be unable to refund the decretal sum if the appeal succeeds, the evidential burden shifts to the decree holder to demonstrate his resources, as that is a matter peculiarly within his knowledge
  • An appeal is deemed filed upon lodging a notice of appeal under Order 42 Rule 6(4); a notice of appeal filed within the prescribed period shows no unreasonable delay

Court orders

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  1. 1.An order of stay of execution of the judgment dated 19th January 2018 be and is hereby granted pending the hearing and determination of the applicant's appeal
  2. 2.The stay of execution is conditional upon the applicant paying 50% of the decretal sum to the claimant and the balance thereof being deposited into a joint interest earning account in the names of E. K. Mutua and Company Advocates and Abbas Esmail c/o Anjarwalla and Khanna Advocates within 14 days for the date of ruling
  3. 3.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17; Rule 32
  • Civil Procedure Rules 2010Order 42 Rule 6(1), (2), (4)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Court of Appeal RulesRule 75
  • Constitution of KenyaArticles 48 and 50

Cases cited (11)

  • NATIONAL INDUSTRIAL CREDIT BANK LIMITED -V- AQUINAS FRANCIS WASIKE AND ANOTHER
  • CARTER AND SONS LIMITED -V- DEPOSIT PROTECTION FUND BOARD AND TWO OTHERS
  • ANTOINE NDIAYE V AFRICAN VIRTUAL UNIVERSITY
    [2015] eKLR
  • MACHIRA T/A MACHIRA & CO. ADVOCATES V EAST AFRICAN STANDARD (NO. 2)
    (2002) KLR 63
  • NORTHWOOD SERVICE LTD V MAC AND MORE SOLUTION LIMITED
    [2015] eKLR
  • EQUITY BANK LIMITED V TAIGA ADAMS COMPANY LIMITED
    Civil Appeal No. 772 of 2005
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • SELESTICA LIMITED VS GOLD ROCK DEVELOPMENT LIMITED
    [2015]
  • WANGALWA & ANOTHER -V- AGNES NALIAKA CHESETO
    Misc. Application No 42 of 2011 [2012] eKLR
  • Silverstein Vs. Chesoni
    [2002] 1KLR 867
  • Mukuma Vs. Abuoga
On appeal from
Not applicable - original decision of this court
Not stated
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, Rule 17 and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules 2016, Order 42 Rule 6 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Dominic Muthusi Mbithi v Kenya Post Office Savings Bank [2018] KEELRC 901 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/901/eng@2018-10-19

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