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ELRCAllowedEmployment and Labour Relations Court cause (Claimant v Respondent), judgment of 20th May 2019; Notice of Motion dated 4th June 2019 (cause number not stated in judgment)· [2019] KEELRC 939 (KLR)

Silvia Anyesi v Rahma Mohammed [2019] KEELRC 939 (KLR)

Employment and Labour Relations Court of Kenya
2 August 2019
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango J on 2nd August 2019, determines the Respondent's Notice of Motion dated 4th June 2019 seeking stay of execution of the judgment and orders of 20th May 2019 pending an intended appeal. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Claimant opposed it, contending it was an afterthought meant to delay enjoyment of the judgment, noting the Respondent had failed to attend court-ordered conciliation before the County Labour Officer, and asked that any stay be conditional on deposit of the decretal sum. The court applied the three-part threshold in Order 42 Rule 6(2), as restated in Butt v Rent Restriction Tribunal. It found no inordinate delay, held that substantial loss was established because the unemployed Claimant could not refund the decretal sum (which was undisputed), and noted the Respondent had already deposited Kshs.308,857.30 in court pursuant to a conditional temporary stay granted by Radido J on 4th June 2019. The court therefore allowed the application, granted stay pending appeal and directed the Respondent to file the appeal within 60 days, with costs of the application to abide the appeal. Significantly, on the Claimant's rectification application dated 24th May 2019, the court exercised its power under Rule 34 of the ELRC (Procedure) Rules to correct an error on the face of the record, reducing the award from the tabulated Kshs.308,857.30 to Kshs.208,080.50 by removing Kshs.100,776.80 included in error, as the body of the judgment had awarded only statutory benefits and no compensation for unfair termination. The Respondent was also to pay the in-person Claimant Kshs.10,000 in reasonable expenses and disbursements.

Key legal issues

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01

Threshold for stay of execution pending appeal

Holding

The three conditions in Order 42 Rule 6(2) — no inordinate delay, substantial loss, and security — were all satisfied: the application was filed one day after the Notice of Appeal; the Claimant, unemployed, could not refund the decretal sum; and the decretal sum had already been deposited in court.

Reasoning

Judgment was delivered on 20th May 2019, the Notice of Appeal filed on 3rd June 2019 and the application on 4th June 2019, so there was no delay. The Respondent's sworn assertion that the unemployed Claimant could not refund the decretal sum was not disputed, establishing substantial loss and the risk of a nugatory appeal. The Respondent had already complied with Radido J's conditional order by depositing Kshs.308,857.30 in court on 11th June 2019, confirming the order of stay.

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02

Rectification of the erroneous award

Holding

The court corrected the award from Kshs.308,857.30 to Kshs.208,080.50, removing the sum of Kshs.100,776.80 included in error, since the judgment awarded only statutory benefits and no compensation for unfair termination.

Reasoning

The itemised tabulation in the judgment totalled Kshs.308,857.30 although the body of the judgment awarded only statutory benefits, the claimant having been given the benefit of doubt on unfair termination without an award of compensation. Acting under Rule 34 of the Employment and Labour Relations Court (Procedure) Rules and on the Claimant's application dated 24th May 2019, the court corrected the error apparent on the face of the record and confirmed the award at Kshs.208,080.50.

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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 furnish security.
  • Substantial loss occurs where the decree holder would be unable to refund the decretal sum if the appeal succeeds, rendering the appeal nugatory.
  • The power to grant or refuse a stay is discretionary and should be exercised so as not to prevent an appeal or render it nugatory (per Butt v Rent Restriction Tribunal).

Court orders

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  1. 1.The application dated 4th June 2019 is allowed
  2. 2.Stay of execution of the judgment and consequential orders of 20th May 2019 granted pending the hearing and final determination of the intended appeal, conditional on the deposit of the decretal sum in court (condition complied with on 11th June 2019)
  3. 3.The Respondent/Applicant directed to file his Appeal within 60 days from the date of the ruling
  4. 4.Pursuant to the Claimant's application dated 24th May 2019, the court corrected the award, confirming the decretal sum as Kshs.208,080.50 (removing the erroneous Kshs.100,776.80 compensation component) comprising one month's salary in lieu of notice Kshs.12,597.10; underpayment arrears Kshs.59,762.30 and Kshs.74,702.85; 18 months accrued leave pay Kshs.13,226.95; and 3 months' maternity leave pay Kshs.37,791.30
  5. 5.The Respondent to pay the Claimant, who was in person, Kshs.10,000 to cover her reasonable expenses and disbursements in respect of the case
  6. 6.Costs of the application to be paid by the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 50
  • Employment and Labour Relations Court (Procedure) RulesRule 34

Cases cited (1)

  • Butt -V- Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, and Rule 34 of the Employment and Labour Relations Court (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, "Silvia Anyesi v Rahma Mohammed [2019] KEELRC 939 (KLR)", Case Analysis (2019). Employment and Labour Relations Court cause (Claimant v Respondent), judgment of 20th May 2019; Notice of Motion dated 4th June 2019 (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/939/eng@2019-08-02

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