Dominic Muthusi Mbithi v Kenya Post Office Savings Bank [2018] KEELRC 901 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was unreasonable delay in pursuing the appeal
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
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.
Whether the applicant demonstrated substantial loss sufficient to justify stay
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
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.
Whether security should be a condition of the stay
Stay granted conditionally: 50% of the decretal sum to be released to the claimant and the balance deposited in a joint interest-earning account
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.
Legal principles established
#- 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
#- 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.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.Costs of the application shall be in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.