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ELRCDismissedNot stated in the judgment (Notice of Motion dated 16th June 2017)· [2018] KEELRC 1869 (KLR)

Kenya Plantation & Agricultural Workers Union (Kpawu) v Greystone Farm (Formerly Equitorial Nut Limited) [2018] KEELRC 1869 (KLR)

Employment and Labour Relations Court
24 April 2018
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The ELRC dismissed Kenya Nut Company's bid to escape a conditional stay order, ruling that claims of financial hardship mean nothing without evidence and security.

What this practically means

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Executive summary

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This was a ruling by Nzioki wa Makau J of the Employment and Labour Relations Court at Nyeri on a Notice of Motion dated 16th June 2017 in which the Respondent/Applicant sought review and setting aside of orders made by Ongaya J on 12th May 2017. Those orders had granted a stay of execution of the decree pending an intended appeal on conditions: deposit of the decretal amount by 1st July 2017 into an interest-earning joint account of the parties' advocates, and filing of the record of appeal by the same date. The applicant argued it lacked the financial capacity to deposit the decretal sum, that it managed only the successor company formerly known as Equitorial Nuts and was not liable for the former company's obligations, and that it had discovered its financial position only after approaching the bank. It relied on Rule 33 grounds for review, including 'any other sufficient reason'. The Claimant opposed, contending the application was a tactic to deny it the fruits of judgment and did not meet the review threshold. The court held the parameters for review are set by Rule 33 of the ELRC (Procedure) Rules 2016, and that although the application was filed with dispatch and without unreasonable delay, it failed on the merits: the applicant made no offer of security, produced no financial statements or projections, and could not credibly claim ignorance of its own finances when it had earlier offered to deposit the sum, which was less than KShs 2 million. Applying the three conditions in Halai v Thornton & Turpin (sufficient cause, substantial loss and security), the court dismissed the review and directed that the decretal sum be deposited within 14 days of the ruling, failing which the stay would automatically lapse.

Key legal issues

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01

Whether the grounds for review under Rule 33 ELRC (Procedure) Rules 2016 were met

Holding

They were not; the applicant failed to offer security or demonstrate substantial loss beyond bare assertions

Reasoning

The court accepted that Rule 33 sets the parameters for review and that the application was made without unreasonable delay, within a month of the orders. However, on the merits, the applicant merely asserted financial inability without any financial statement or projections, and made no offer of security, which is a mandatory condition for stay. The claim of newly discovering its own financial position was implausible given it had earlier offered to deposit the decretal sum.

p. 2
02

Whether there was unreasonable delay in bringing the review application

Holding

No unreasonable delay; the application was made with dispatch within a month of the orders

Reasoning

Although the application was finally argued in 2018, the court found from the record that the Respondent made the application for stay and review promptly, within a month of the orders of Ongaya J. Delay therefore did not defeat the application; its failure rested on the merits.

p. 2
03

Whether inability to comply with the conditional deposit order constitutes a 'sufficient reason' for review

Holding

No; the respondent knew its financial position when it offered to deposit the decretal sum and no exception to the stay rule justifies relieving it of financial embarrassment

Reasoning

The court rejected the submission that the respondent only learnt of its inability after the bank disclosed it. The decretal sum was less than 2 million shillings, and the respondent had previously offered to deposit it. Without financial statements, projections or an offer of security, the applicant failed the Halai v Thornton & Turpin conditions and the review could not stand.

p. 2

Legal principles established

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  • The discretion to order stay of execution is fettered by three conditions: sufficient cause, substantial loss, and furnishing of security
  • Financial embarrassment asserted without evidence (no financial statements or projections) cannot excuse compliance with a conditional stay order

Court orders

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  1. 1.The application for review of the orders of Ongaya J. dated 12th May 2017 is dismissed
  2. 2.The Respondent/Applicant is directed to deposit the decretal sum (less than 2 million shillings) within 14 days of the Ruling, failing which the stay granted by the court will automatically lapse

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(a)
  • Employment and Labour Relations ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 33
  • Civil Procedure Rules (former Order XLV rule 1, cited within Touring Cars (K) Ltd v Mukanji)Order XLV rule 1

Cases cited (8)

  • Jeremiah Muku v Methodist Church of Kenya Registered Trustees & Another
    [2009] eKLR
  • Touring Cars (K) Ltd v Mukanji
    [2000] 1 E.A. 261
  • Origo v Mungala
    [2005] KLR 307
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Elena Duodoladova Korir v Kenyatta University
    [2014] eKLR
  • Halai & Another v Thornton & Turpin (1963) Ltd
    [1990] KLR 365
  • Mugambi v Housing Finance Co. (K) Ltd
    [2006] eKLR
  • National Bank of Kenya Limited v Ndung’u Njau
    [1997] eKLR
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016 (review jurisdiction), Section 16 of the Employment and Labour Relations 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, "Kenya Plantation & Agricultural Workers Union (Kpawu) v Greystone Farm (Formerly Equitorial Nut Limited) [2018] KEELRC 1869 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 16th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1869/eng@2018-04-24

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