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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1875 (KLR)

Joseph Kairu Mutahi v British Army Training Unit Kenya [2018] KEELRC 1875 (KLR)

Employment and Labour Relations Court
25 April 2018
2,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused enforcement of a nearly KShs 3 million judgment, but only after the employer agreed to deposit half the money as security.

What this practically means

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Executive summary

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The Respondent/Applicant, an arm of the United Kingdom whose employee had been terminated following sexual harassment complaints, sought by Notice of Motion dated 30th January 2018 a stay of execution pending appeal of the judgment of Ongaya J. of 15th December 2017, which ordered it to pay the Claimant Kshs. 2,997,979/- by 2nd February 2018 and to establish a workplace sexual harassment policy in compliance with the Employment Act by 1st May 2018. The Claimant opposed, arguing inordinate delay (the application was filed on the last day of the payment period), failure to furnish security, and absence of substantial loss since he owned property valued at about Kshs. 8,000,000 along the Nanyuki-Isiolo highway and was capable of refunding the decretal sum. The Respondent argued the intended appeal raised novel questions on non-disclosure of complainants' identities and that the appeal would be rendered nugatory if the decretal sum was paid out. The court held that the application was filed before expiry of the payment period and was therefore not indolent; that even one day's delay may be inordinate in some cases but not here; that novelty of appeal points is not of itself sufficient cause for stay; and that inability to recover the tidy sum of nearly Kshs. 3 million would constitute substantial loss for either party. Finding all parameters satisfied, the court granted the stay on condition that the Respondent deposit half the decretal sum in an interest-earning account in the joint names of the parties' advocates within 21 days, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The application was not delayed; it was filed before the expiry of the period given for payment of the decretal sum, and a notice of appeal was filed on time.

Reasoning

The court considered the Claimant's contention that filing on the last day was inordinate delay, relying on authority that even one day's delay may be unreasonable depending on circumstances. However, since the judgment gave time for payment and the Respondent moved before that period expired and filed its notice of appeal on time, the conduct did not amount to indolence.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

Substantial loss was demonstrated because the inability to recover the decretal sum would result in substantial loss for whichever party was aggrieved; the sum was substantial and either party could end up holding a paper decree.

Reasoning

The court weighed the Respondent's apprehension that payment out would render a successful appeal nugatory against the Claimant's fear that the foreign Respondent might relocate, leaving him with a decree costly to execute abroad. It found the sum of nearly Kshs. 3 million to be a tidy sum and held that inability to recover it for either party would amount to substantial loss.

p. 3
03

Whether security for the due performance of the decree had been offered

Holding

The Respondent offered security in word and willingness to abide by the court's orders; the court exercised its discretion to order a deposit of half the decretal sum as security.

Reasoning

The court held that Order 42 leaves the question of security to the court's discretion. The Respondent, a foreign entity, offered to furnish security and abide by any order. Balancing the parties' competing apprehensions, the court ordered deposit of half the decretal sum in a joint interest-earning account within 21 days.

p. 3
04

Whether the novelty of the intended appeal's points justified a stay

Holding

Novelty alone is not sufficient cause for stay; the applicant must go beyond novelty.

Reasoning

The Respondent argued the intended appeal raised novel questions of law concerning non-disclosure of identities of sexual harassment complainants. The court, applying Ochieng J.'s decision in Equitorial Commercial Bank Ltd & 2 Others v Retreat Villas Limited, held that novelty may found leave to appeal but is not of itself sufficient cause to justify stay.

p. 3

Legal principles established

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  • Novelty of a point of law on appeal is not of itself sufficient cause to justify a stay of execution
  • Order 42 does not by itself require the furnishing of security; it is the court that has the discretion to order a party to furnish security
  • In some instances even a delay of one day may be inordinate or unreasonable

Court orders

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  1. 1.Stay of execution of the judgment of Ongaya J. of 15th December 2017 granted
  2. 2.Deposit of half the decretal sum in an interest-earning account in the joint names of the advocates for the parties within 21 days
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Employment Actcompliance regarding workplace sexual harassment policy
  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 31

Cases cited (17)

  • Likhanga Shikami & Another v Illangana Ingasiali Regina & Another
    [2015] eKLR
  • Stanley Munga Githunguri v Jimba Credit Corporation Limited
    (1988) KLR 838
  • Kenya Tea Growers Association & Another v Kenya Plantation and Agricultural Workers Union
    [2012] eKLR
  • Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others v Kilach
    (2003) KLR 249
  • Reliance Bank Ltd v Norlake Investments Ltd
    (2002) 1 EA 227
  • Nation Media Group & 2 Others v John Joseph Kamotho & 3 Others
    Civil Application No. NAI. 108 of 2006 (UR. 66/2006) (unreported)
  • Kenya Wildlife Service v Lake Jipe Safari Lodge
    Court of Appeal Civil Application No. 92 of 2017 (unreported)
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Equity Bank Ltd v Taiga Adams Co. Ltd
    [2006] eKLR
  • Selestica Ltd v Gold Rock Development Ltd
    [2015] eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    [2012] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997 (unreported)
  • Mungungu v National Bank of Commerce Ltd
    (2007) 2 EA 285
  • Equitorial Commercial Bank Ltd & 2 Others v Retreat Villas Limited
    [2006] eKLR
On appeal from
Employment and Labour Relations Court (Ongaya J.)
Jurisdiction invoked
Inherent discretion over stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, invoked by the parties

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kairu Mutahi v British Army Training Unit Kenya [2018] KEELRC 1875 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1875/eng@2018-04-25

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