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ELRCPartially AllowedNot stated in the judgment extract· [2019] KEELRC 634 (KLR)

Christine Kinya Gikunda v Mantrac Limited [2019] KEELRC 634 (KLR)

Employment and Labour Relations Court
11 October 2019
1,534 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 paused enforcement of a Kshs 1.2 million judgment, but only because the company agreed to deposit the money in a protected joint account.

What this practically means

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Executive summary

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Mantrac Kenya Limited, the judgment debtor, applied by Notice of Motion dated 24th June 2019 for a stay of execution of the judgment of Abuodha J. delivered on 14th June 2019, which awarded the Claimant six months' compensation of Kshs. 1,200,000/= subject to statutory deductions, pending an intended appeal. The applicant relied on Sections 3, 12, 13, 17 and 20 of the Employment and Labour Relations Court Act, Rule 17 of the ELRC (Procedure) Rules and Articles 159(2) and 164(3) of the Constitution, and exhibited a Notice of Appeal and a request for typed proceedings. It argued the appeal would be rendered nugatory without a stay and offered to abide by conditions on security. The Claimant opposed, contending that a Notice of Appeal does not warrant stay, that no arguable appeal was demonstrated, and that a money decree can be repaid. The applicant's counsel relied on Amal Hauliers Ltd v Abdunnasir Abukar Hassan and the Butt v Rent Restriction Tribunal line of authority. Maureen Onyango J. set out the dual criteria for stay: under Order 42 Rule 6(2) of the Civil Procedure Act, proof of substantial loss and security; under Rule 5(2)(b) of the Court of Appeal Rules, an arguable appeal that would be rendered nugatory. Noting the applicant's willingness to abide by conditions and the decree holder's failure to demonstrate ability or willingness to refund the decretal sum if the appeal succeeded, the court granted stay of execution pending appeal on condition that the decretal sum be deposited into a joint interest-earning account of both counsel within 30 days, failing which the stay lapses. Costs of the application were made costs in the appeal.

Key legal issues

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01

Threshold for stay of execution pending appeal

Holding

The court accepted the two-pronged thresholds: substantial loss and security under Order 42 Rule 6(2), and arguability plus nugatory-ness under the Court of Appeal Rules line of authority. The applicant's expressed fears and willingness to abide by conditions, coupled with the decree holder's failure to demonstrate ability or willingness to refund, justified a conditional stay.

Reasoning

The court reviewed Order 42 Rule 6(2) requirements and authorities on substantial loss, noting that loss must be proved by affidavit evidence. It distinguished the Order 42 threshold from the Rule 5(2)(b) test (arguable appeal and nugatory-ness). Finding the applicant willing to give security and the decree holder unable to show she would refund the decretal sum, the court held the interests of justice were best served by stay conditioned on deposit of the decretal sum.

p. 2

Legal principles established

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  • There are two separate criteria for grant of stay pending appeal: under Order 42 Rule 6(2) of the Civil Procedure Act the threshold is proof of substantial loss and security; under Rule 5(2)(b) of the Court of Appeal Rules the appellant must show an arguable appeal that would be rendered nugatory.
  • Where a decree holder cannot show ability or willingness to refund the decretal sum should the appeal succeed, stay may be granted on condition that the decretal sum is deposited in a joint interest-earning account.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 14th June 2019 and any consequential orders, pending appeal, granted subject to the appellant/judgment debtor depositing the decretal sum into an interest-earning account in the joint names of counsel for the claimant and counsel for the applicant within 30 days from the date of ruling, failing which the stay orders lapse
  2. 2.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 3(1), (2), (3), 12, 13, 17, 20
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Constitution of KenyaArticles 159(2), 164(3)
  • Civil Procedure ActOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Amal Hauliers Ltd -v- Abdunnasir Abukar Hassan
    [2017] eKLR
  • Butt v Rent Restriction Tribunal
  • Kwekwe Mwakela v Krystalline Salt Ltd
    [2015] eKLR
  • Finlay Flowers (K) Limited and Another v Kenya Plantation and Agricultural Workers Union
    [2019] eKLR
  • Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd
    Civil Application No. Nai 157 of 2006
  • Reliance Bank Limited vs Norlake Investments Limited
    [2002] 1 EA 227
On appeal from
Court of Appeal (intended appeal from the ELRC judgment of Abuodha J.)
Not stated (Notice of Appeal filed; no appeal number given)
Jurisdiction invoked
Sections 3(1), (2) and (3), 12, 13, 17 and 20 of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules; Articles 159(2) and 164(3) of the Constitution of Kenya; Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Christine Kinya Gikunda v Mantrac Limited [2019] KEELRC 634 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/634/eng@2019-10-11

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