Rose Aoko Ogwang v National Gender and Equality Commission [2019] KEELRC 1162 (KLR)
The bottom line
#A Kenyan employment court paused enforcement of an Kshs 11.4 million award against a public body, but only if it files its appeal within six months.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution was made without unreasonable delay
The two-month delay was explained and does not amount to inordinate delay.
The Respondent attributed the delay to a vacuum in its office occasioned by the transition of commissioners. The Claimant did not dispute this. The court adopted the Utalii Transport test that 'inordinate' means excessive as compared to normality, and found the delay reasonable and adequately explained.
Whether the Respondent demonstrated substantial loss capable of being suffered if stay is not granted
Substantial loss was established because the Claimant failed to demonstrate ability to refund the decretal sum if the appeal succeeds, while the Respondent's ability to make good the decree is certain.
The Respondent is a public body with guaranteed continuity, whereas the Claimant's purported security - two jointly owned parcels in remote Nyanza - is subject to the joint owner's interests and of uncertain value. Applying National Industrial Credit Bank Ltd v Wasike, the evidential burden shifted to the Claimant, who did not discharge it.
Whether security for due performance of the decree was required
No security was required from the Respondent as rule 8 exempts the government or parties whose defence is undertaken by the government.
Although Order 42 rule 7(1) permits the court to require security for restitution, rule 8 provides that no security shall be required from the government. The Respondent, being a public institution, fell within this exemption and had expressed willingness to obey conditions set by the court.
Legal principles established
#- Once an applicant expresses that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has, as that is a matter peculiarly within his knowledge.
- The word 'inordinate' in the context of delay should be understood as excessive as compared to normality, not in its dictionary meaning.
Court orders
#- 1.Stay of execution of judgment in this suit is granted pending appeal.
- 2.The stay is conditional upon the Respondent filing the Memorandum of Appeal within 6 months failing which the stay of execution shall automatically lapse after the expiry of the period.
- 3.The respondent shall pay the claimant's costs of this application in any event.
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules; sections 12(3)(v) and (viii) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Aoko Ogwang v National Gender and Equality Commission [2019] KEELRC 1162 (KLR)", Case Analysis (2019). Cause No 1803 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1162/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.