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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1455 (KLR)

Susan Atieno Ngoko v Ram Hospital Limited [2018] KEELRC 1455 (KLR)

Employment and Labour Relations Court
19 July 2018
3,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court refused to pause a Kshs.217,452 judgment because the employer delayed unreasonably and showed no real harm from paying.

What this practically means

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Executive summary

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The applicant, the respondent in an employment claim in which judgment was delivered on 19th January 2017 awarding the claimant Kshs.217,452.45 (one month's salary in lieu of notice, leave for two years and twelve months' salary as compensation), filed a notice of motion on 3rd March 2017 seeking stay of execution pending an intended appeal to the Court of Appeal. The claimant opposed, contending the notice of appeal was defective, served out of time, and that the application was brought after inordinate delay and without demonstration of substantial loss, she being able to refund the decretal sum from her second-hand clothes business. The court framed four issues: validity of the defective and amended notice of appeal; the effect of failure to serve it within seven days under Rule 74 of the Court of Appeal Rules; laches; and entitlement to stay under Order 42 Rule 6(1) and (2). The court held the notice of appeal, having been filed timeously and amended without objection, retained its 2nd February 2017 filing date. However, the applicant offered no explanation for the one-month delay in service or for filing the stay application 48 days after judgment, only two days before taxation of the claimant's bill of costs. The court also noted the draft memorandum of appeal challenged only quantum, not the validity of the decision, and rejected the arguments that the award was 'colossal' or that the applicant had no known means, these not being statutory factors. Finding no substantial loss demonstrated, the court dismissed the application with costs to the claimant.

Key legal issues

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01

Validity of the defective and amended notice of appeal

Holding

The notice of appeal filed on 2nd February 2017 was timeously filed; its amendment did not affect the original filing date, and the claimant, having not objected to the amendment, could not later challenge its validity.

Reasoning

The notice of appeal erroneously referred to the wrong judge but was filed within time. The court directed its amendment, to which the claimant did not object, and she was served with the amended notice. Because the notice was never withdrawn or struck out but only amended, the original lodgement date of 2nd February 2017 remained effective for purposes of the stay application.

p. 3
02

Failure to serve the notice of appeal within 7 days as required by Rule 74 of the Court of Appeal Rules

Holding

The delay of one month in service was inordinate and unexplained, and the court found no valid reason for it.

Reasoning

Rule 74 of the Court of Appeal Rules requires a notice of appeal to be served within 7 days of lodgement. Here the notice lodged on 2nd February 2017 was served on 2nd March 2017. The applicant had the opportunity to explain the delay in its supplementary affidavit and submissions but glossed over the issue, leaving the court to treat the delay as unexplained.

p. 3
03

Whether the applicant was guilty of laches in filing the stay application 48 days after judgment

Holding

The application filed on 8th March 2017, 48 days after judgment and only two days before taxation, was unexplained and suggested the applicant was awakened only by the threat of execution.

Reasoning

Judgment was delivered on 19th January 2017 but the application was filed on 8th March 2017, shortly after the applicant was served with notice of taxation of the claimant's bill of costs. The applicant did not explain the delay in its affidavits or submissions. The court inferred that the applicant had gone to sleep until threatened with execution.

p. 4
04

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(1) and (2)

Holding

The applicant failed to establish substantial loss; the award of Kshs.217,452.45 was not shown to warrant a stay, and the draft memorandum of appeal only challenged quantum, not validity of the decision.

Reasoning

Order 42 Rule 6 requires substantial loss, absence of inordinate delay and security. The grounds that the award is 'colossal' and the applicant is of no known means are not statutory factors. The draft appeal sought only substitution of quantum, showing the applicant expected to pay. Looking at the totality, including the delays and the balance of economic strength, the court found no basis to deny the claimant the fruits of judgment.

p. 4

Legal principles established

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  • A notice of appeal filed timeously and subsequently amended rather than withdrawn or struck out retains its original filing date notwithstanding the amendment
  • Financial ability of the decree holder is not the only reason for allowing stay, and an appeal cannot be rendered nugatory in a monetary decree merely because the decree holder is poor
  • A party who does not object to a direction to amend a document and does not object when served with the amendment cannot later challenge its validity

Court orders

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  1. 1.The notice of motion dated 3rd March 2017 seeking stay of execution of the judgment and decree delivered on 19th January 2017 is dismissed
  2. 2.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Court of Appeal RulesRule 74
  • Evidence ActSection 107

Cases cited (11)

  • FIROZE NURALI HIRJI -V- HOUSING FINANCE COMPANY OF KENYA LIMITED & ANOTHER
  • KENYA POSTS AND TELECOMMUNICATIONS CORPORATION –V- PAUL GACHANGA NDARUA
  • FLORENCE HARE MKAHA -V- PWANI TAWAKAL MINI COACH & ANOTHER
  • NATIONAL INDUSTRIAL CREDIT BANK LIMITED -V- AQUINAS FRANCIS WASIKE & ANOTHER
  • NATION MEDIA GROUP LIMITED & 2 OTHERS -V- JOHN JOSEPH KAMOTHO & 3 OTHERS
  • KENYA HOTEL PROPERTIES LIMITED -V- WILLESDEN PROPERTIES LIMITED
  • CORPORATE INSURANCE COMPANY LIMITED -V- EMMY CHEPTOO LETTING & ANOTHER
  • PAMELA AKINYI OPUNDO -V- BARCLAYS BANK
  • STEPHEN WANJOHI -V- CENTRAL GLASS INDUSTRIES LIMITED
  • STEPHEN O. OKUMU & ANOTHER -V- G.G. NG'ANG'A
  • KENYA SHELL LIMITED V- BENJAMIN KARUGA KIBIRU & ANOTHER
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, on a notice of motion for stay of execution pending intended appeal to the Court of 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, "Susan Atieno Ngoko v Ram Hospital Limited [2018] KEELRC 1455 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1455/eng@2018-07-19

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