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ELRCPartially AllowedNot stated in extract· [2019] KEELRC 504 (KLR)

Banking Insurance and Finance Union v Barclays Bank of Kenya Limited [2019] KEELRC 504 (KLR)

Employment and Labour Relations Court
25 October 2019
OMONESMUS N. MAKAU
1,604 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court paused enforcement of a KShs 8.2 million award, confirming that filing a Notice of Appeal is enough to seek a stay.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Makau J) on a Notice of Motion dated 31 July 2019 by the Respondent/Applicant, Grace Kanyiri, seeking stay of execution of a judgment delivered by Abuodha J on 26 July 2019 awarding the Claimant KShs. 8,203,999.00, pending an intended appeal. The applicant contended that the application was filed four days after judgment without delay, that the 24 grievants (who had exited employment through voluntary early retirement) lacked capacity to refund the decretal sum if the appeal succeeded, and offered to deposit the decretal sum in court or a joint account as security. She also submitted that a Notice of Appeal suffices for stay purposes under Order 42 rule 6(4) and that the right of appeal is protected under Articles 50(1) and 159(2) of the Constitution. The Claimant opposed, arguing the sum was not colossal for a bank, the grievants should enjoy the fruits of judgment, no memorandum of appeal had been filed to show an arguable appeal, and the applicant had failed to demonstrate special circumstances or the claimant's inability to repay. The court framed a single issue: whether the applicant met the Order 42 rule 6(2) threshold. It found the application timeous; applying National Industrial Credit Bank v Wasike, it held the evidential burden shifted to the respondent on refund capacity; it found substantial loss likely since the 24 non-party grievants would be hard to trace; it held a Notice of Appeal suffices; and it welcomed the security offer. Stay was granted on condition the decreed sum be deposited in court within 15 days, with costs to abide the appeal.

Key legal issues

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01

Whether the Applicant met the Order 42 rule 6(2) threshold for stay of execution pending appeal

Holding

Yes - the application was made without unreasonable delay, substantial loss was demonstrated as to refundability, and security was offered.

Reasoning

The application was filed four days after judgment, hence timeous. The decretal sum of over KShs. 8 million was payable to 24 grievants who are not direct parties and would be difficult to trace after distribution, and the claimant had not shown how it would repay on their behalf. The applicant offered to deposit the decretal sum as security. All three limbs of Order 42 rule 6(2) were therefore satisfied.

p. 3
02

Whether a Memorandum of Appeal must be filed to demonstrate an arguable appeal when seeking stay

Holding

No - a Notice of Appeal suffices for purposes of seeking stay pending appeal.

Reasoning

The claimant argued that without a memorandum of appeal the applicant could not show an arguable appeal. The court rejected this, holding it is trite that filing a Notice of Appeal is sufficient for purposes of seeking stay of execution pending appeal.

p. 2

Legal principles established

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  • Filing of a Notice of Appeal is sufficient for purposes of seeking stay of execution pending appeal; a Memorandum of Appeal need not be filed.
  • Where an applicant expresses that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show what resources he has.

Court orders

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  1. 1.Stay of execution granted pending appeal on condition that the decreed sum of Kshs.8,203,999.00 is deposited in court within 15 days
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules (Order 42)rule 6(2)
  • ELRC (Procedure) Rulesrule 32(2)
  • Judicature Actsection 5
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)

Cases cited (1)

  • National Industrial Credit Bank Limited –V- Aquinas Francis Wasike and Another
    [2006] eKLR
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules read with the ELRC Rules (trial court stay of execution pending appeal); interlocutory motion in the cause decided by Abuodha J on 26 July 2019

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, "Banking Insurance and Finance Union v Barclays Bank of Kenya Limited [2019] KEELRC 504 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/504/eng@2019-10-25

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