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ELRCAllowedCause No 762 of 2015· [2019] KEELRC 508 (KLR)

Edward Clyde Asitiba v Attorney General [2019] KEELRC 508 (KLR)

Employment and Labour Relations Court
25 October 2019
MOMAUREEN ONYANGO
1,936 words in judgment
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The bottom line

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Kenya's Employment Court paused a Kshs.6 million award against the Judiciary, ruling the state had valid reasons for filing its stay application late.

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 (Maureen Onyango J) on the Attorney General's Notice of Motion dated 7 March 2019 seeking interim and pending-appeal stay of execution of the judgment of Nderi Nduma J (signed 31 July 2018, delivered by Onyango J on 10 August 2018) which awarded the Claimant general damages of Kshs.6,000,000 for unlawful and unfair termination of employment, plus costs and interest. The application, supported by an affidavit of the Chief Registrar of the Judiciary, Anne A. Amadi, invoked Order 42 Rule 6 of the Civil Procedure Rules, the ELRC Act and Article 159(2) of the Constitution, contending an arguable appeal and the Applicant's legal exemption from furnishing security. The Claimant, Edward C. Asitiba, opposed the application through the affidavit of the decree holder, citing delay, absence of demonstrated arguability, and no threat of execution since no decree had been extracted. The court framed a single issue: whether the application was merited, measuring it against the Order 42 Rule 6(2) thresholds and the Butt v Rent Restriction Tribunal principles. On delay, the court accepted that the application was prompted by the notice of taxation served with the Bill of Costs and that execution cannot issue against the Attorney General without leave. On substantial loss, the court found the Applicant risked losing the decretal sum and the appeal would be rendered nugatory. The court allowed the application, granted stay of execution pending appeal conditioned on the appeal being filed within 90 days, and ordered costs of the application to be in the appeal.

Key legal issues

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01

Inordinate delay in filing the stay application

Holding

The delay was reasonably explained because the application was prompted by the notice of taxation served with the Claimant's Bill of Costs, and execution cannot issue against the Attorney General without leave.

Reasoning

Judgment was delivered on 10 August 2018 and a Notice of Appeal was filed promptly, with a request for certified proceedings. The application was filed on 7 March 2019 after the notice of taxation dated 1 February 2019 was served. The court found there was no necessity to apply for stay before the Bill of Costs was filed, since the respondent is the Attorney General against whom execution requires leave of the court.

p. 3
02

Substantial loss

Holding

Substantial loss was demonstrated because the Applicant risks losing the decretal sum of Kshs.6,000,000 with costs and interest, and the appeal would be rendered nugatory if the sum cannot be recovered.

Reasoning

The court reasoned that the right to appeal is enshrined in the right to a fair hearing. The Applicant had not demonstrated ability to refund the decretal sum should the appeal succeed, meaning it risked losing Kshs.6,000,000 plus costs and interest. Further, the appeal may be rendered nugatory and reduced to an academic exercise if the decree holder cannot recover the decretal sum. On this basis stay was granted.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires that the application be brought without inordinate delay, that substantial loss be demonstrated, and that the applicant be willing to give security.
  • The reasonableness of delay may be assessed in the special circumstances of the case, including that no execution can issue against the Attorney General without leave of the court.

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered on 10th August 2018 pending appeal is granted
  2. 2.The intended appeal to be filed within 90 days from the date of the ruling, failing which the Claimant/decree holder may proceed to execute for the decretal sum
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3, 12, 13, 17 and 20
  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure Rules, 2010Order 42 Rule 6 (including Rule 6(2)(b))

Cases cited (8)

  • National Industrial Credit Bank Ltd Vs Aquinans Frank Wasike
    (2016) eKLR
  • Equity Bank Ltd Vs Taiga Adams Company Limited
    (2006) eKLR
  • Focin Motorcycle Company Limited Vs Ann Wambui Wangui and Another
    (2018) eKLR
  • Reliance Bank Limited (in liquidation) Vs Norlake Investments Company Limited
    (2002) 1 EA 227
  • Royal Media Services Limited Vs Veronica Chepkemboi
    (2015) eKLR
  • Kenya Hotel Properties Limited Vs Willisden Investments Limited & 6 Others
    (2013) eKLR
  • Butt Vs Rent Restriction Tribunal
    (1982) KLR 417
  • Amal Hauliers Limited Vs Abdulnasir Abukar Hassan
    (2017) eKLR
Jurisdiction invoked
Sections 3, 12, 13, 17 and 20 of the Employment and Labour Relations Court Act, 2011; Article 159(2) of the Constitution of Kenya, 2010; Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Edward Clyde Asitiba v Attorney General [2019] KEELRC 508 (KLR)", Case Analysis (2019). Cause No 762 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/508/eng@2019-10-25

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