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ELRCDismissedNotice of Motion dated 24/06/2019 (referred from ELRC Petition; decree arising from judgment of Wasilwa J dated 13/03/2019)· [2019] KEELRC 324 (KLR)

Tracy Wangechi Mugambi v Windsor Gold Hotel & Country Club [2019] KEELRC 324 (KLR)

Employment and Labour Relations Court
28 October 2019
HWHellen Wasilwa
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused Windsor Golf Hotel's request to pause payment of a Kshs 2.5 million award, ruling the Court of Appeal must handle the application.

What this practically means

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Executive summary

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Windsor Golf Hotel & Country Club (Respondent/Applicant) applied by Notice of Motion dated 24/06/2019 for stay of execution of the judgment of Wasilwa J delivered on 13/03/2019 and the decree of 12/06/2019 awarding Tracy Wangechi Mugambi Kshs. 2,575,527.00, pending hearing of the application and an intended appeal. The Applicant argued it had an automatic right of appeal under Section 17(1) of the ELRC Act and Article 164(3)(b) of the Constitution, that it had filed a Notice of Appeal (out of time) and an extension of time application at the Court of Appeal (Civil Application 134 of 2019), that it would suffer substantial loss as the Petitioner could not refund the decretal sum, that it had deposited the decretal sum in court as security, and that its delay in moving the court was not inordinate since it awaited the Court of Appeal's decision. The Petitioner opposed, contending the Notice of Appeal was filed out of time without leave, that no valid appeal existed on record, that the application was brought only after she threatened execution, that substantial loss was not demonstrated for a monetary decree, and that she had means to refund if the appeal succeeded. Both parties cited authorities on the Order 42 rule 6 conditions and substantial loss. The court held that since the Court of Appeal was already seized of the matter and no appeal had yet been filed, the Court of Appeal was the proper forum. It declined to grant any stay orders and awarded costs to the Respondent.

Key legal issues

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01

Forum for stay pending an intended (not yet filed) appeal

Holding

The trial court declined to grant stay because the appeal was not yet on record and the Court of Appeal was already seized of the extension of time application

Reasoning

The court examined the averments and noted the Applicant sought stay pending an application before the Court of Appeal for extension of time to file an appeal. Since that court was already dealing with the matter and no appeal had been filed in the meantime, the trial court held the Court of Appeal was the proper forum and declined to grant stay.

p. 3

Legal principles established

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  • Where the intended appeal has not been filed and the Court of Appeal is seized of an application relating to the appeal, an application for stay pending appeal should be argued before the Court of Appeal, not the trial court

Court orders

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  1. 1.Stay of execution of the judgment of Wasilwa J dated 13/03/2019 and the decree of 12/06/2019 refused
  2. 2.Costs of the application to the Petitioner/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Employment and Labour Relations Court ActSection 17(1)
  • Constitution of KenyaArticle 164(3)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Court of Appeal RulesRule 5(2)

Cases cited (10)

  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • Kenya Tea Growers Association & another v Kenya Planters & Agricultural Workers Union
    Civil Application Nai No. 72 of 2001
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • Superior Homes (Kenya) Limited v Musango Kithome
    [2018] eKLR
  • Fubeco China Fushun v Naiposha Company Ltd & 11 others
    Civil case No. 222 of 2012
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nairobi HCCC No. 6726 of 1991
  • Socfinac Company Ltd v Nelphat Kimotho Muturi
    Civil Appeal 542 of 2012 eKLR
  • Equatorial Commercial Bank Ltd & 2 others v Retreat Villas Limited
    Civil case No. 443 of 2001 eKLR
  • Ricrac Company Ltd & another v Kenya National Highways Authority & another
    Constitutional Petition No. 50 of 2016 eKLR
  • Machira t/a Machira & Company Advocates v East African Standard
    (2002) 2 KLR 63
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Section 17(1) of the Employment and Labour Relations Court Act; Article 164(3)(b) of the Constitution (invoked by the Applicant)

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, "Tracy Wangechi Mugambi v Windsor Gold Hotel & Country Club [2019] KEELRC 324 (KLR)", Case Analysis (2019). Notice of Motion dated 24/06/2019 (referred from ELRC Petition; decree arising from judgment of Wasilwa J dated 13/03/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/324/eng@2019-10-28

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