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ELRCPartially AllowedCause No 1804 of 2017· [2018] KEELRC 1082 (KLR)

Sarah Nduta Thenya & 4 others v Edelvale Trust Jamaa Home & Mission Hospital [2018] KEELRC 1082 (KLR)

Employment and Labour Relations Court
27 September 2018
HWHellen Wasilwa
1,228 words in judgment
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The bottom line

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A Kenyan hospital won a stay of a salary order, but only on condition it pay half salaries to suspended employees pending appeal.

What this practically means

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Executive summary

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The Respondent (hospital) moved the Employment and Labour Relations Court by Notice of Motion dated 1 March 2018 under Section 12(3)(viii) of the Employment and Labour Relations Court Act, Rule 17 of the ELRC (Procedure) Rules 2016 and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the Court's orders of 5 February 2018. Those orders had confirmed ex-parte orders of 8 September 2017, directed release of withheld salaries to the 1st to 3rd Claimants, and required continued payment of their salaries until determination of the main suit. The Applicant, having filed a Notice of Appeal, argued that the appeal was arguable and would be rendered nugatory because the Claimants had no means to refund salaries if the appeal succeeded, and cited strained workplace relations affecting health service delivery. The Claimants opposed, noting they had been on indefinite suspension without pay until 19 March 2018 and that no security had been deposited. The court applied Order 42 rule 6(2), finding substantial loss alleged, the application filed within a reasonable period after the ruling, and security forthcoming. It allowed stay on condition that the Applicant pay salaries up to the date of the ruling, deemed the Claimants on interdiction, and held them entitled to half salary pending appeal. Judgment delivered by Hellen Wasilwa, J, on 27 September 2018.

Key legal issues

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Conditions for grant of stay of execution under Order 42 rule 6(2)

Holding

Stay granted because substantial loss was alleged, the application was filed within a reasonable period, and the Applicants were willing to deposit security

Reasoning

The court applied Order 42 rule 6(2) of the Civil Procedure Rules, requiring substantial loss, absence of unreasonable delay, and security. It found the Notice of Appeal lodged within 14 days, the application filed on 1 March 2018 following the 5 February 2018 decision, and the Applicants willing to deposit the requisite security. It therefore granted stay on conditions, half salary pending appeal.

p. 3

Legal principles established

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  • No order for stay of execution shall be made unless substantial loss is shown, the application is made without unreasonable delay, and security for due performance is given

Court orders

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  1. 1.Stay of execution of the Court's orders issued on 5th February 2018 granted on condition
  2. 2.Applicants to pay the Respondents salary payable up to the date of the ruling
  3. 3.Claimants deemed to be on interdiction and entitled to payment of half their salary pending hearing and determination of the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3)(viii)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Court of Appeal RulesRule 75(2)
Jurisdiction invoked
Section 12(3)(viii) of the Employment and Labour Relations Court Act, Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016 and Order 42 Rule 6 of the Civil 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, "Sarah Nduta Thenya & 4 others v Edelvale Trust Jamaa Home & Mission Hospital [2018] KEELRC 1082 (KLR)", Case Analysis (2018). Cause No 1804 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1082/eng@2018-09-27

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