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ELRCPartially AllowedMotion dated 2nd May 2019· [2019] KEELRC 1631 (KLR)

Justin Mutunga David v China Road & Bridge Corporation (K) Limited [2019] KEELRC 1631 (KLR)

Employment and Labour Relations Court
23 May 2019
NMNzioki wa Makau
1,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court paused enforcement of an award only after the employer agreed to deposit the full amount in a joint, interest-earning account.

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 Nyeri on the Respondent/Applicant's motion dated 2nd May 2019 seeking stay of execution of the judgment delivered on 19th November 2018 and all consequential orders pending hearing and determination of an intended appeal. The Applicant, through Mr. Ondieki, argued that it met the Order 42 Rule 6 conditions, offering a bank guarantee for the decretal sum of Kshs. 485,598/=, that the Claimant was unemployed and unlikely to refund the decretal sum, and that the Notice of Appeal had been filed in time, which under Order 42 Rule 6(4) deems the appeal filed. The Claimant, through Mr. Kagunda, opposed, noting that no payment had been made since judgment, that a decree and certificate of taxation were served in February 2019 and proclamation on 3rd May 2019, that stay had already been granted for 30 days on 19th November 2018 and could not be re-sought, and that there was inordinate delay of six months with no explanation. He alternatively sought deposit of the entire decretal sum in an interest-earning account. The court applied the principles in Butt v Rent Restriction Tribunal [1982] KLR 417, holding that stay is discretionary and should not prevent an appeal. Noting the applicant's willingness to furnish security and that the Notice of Appeal is deemed initiation of the appeal, the court found refusal would render the intended appeal nugatory. It granted stay on terms: deposit of the entire decretal sum in a joint interest-earning account within 30 days, settlement of auctioneer's charges within 15 days, lapse of stay on default, and liberty to apply.

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

Stay granted on terms - deposit of decretal sum in joint interest-earning account within 30 days and settlement of auctioneer's charges within 15 days, failing which stay lapses

Reasoning

Applying Butt v Rent Restriction Tribunal, the court held the discretion should be exercised so as not to prevent an appeal. The applicant offered security by way of bank guarantee; refusal would render the intended appeal nugatory since the Notice of Appeal had been filed in time and is deemed initiation of the appeal, despite slowness in processing the appeal.

p. 2
02

Whether the appeal was duly on foot despite no memorandum of appeal having been filed

Holding

Filing of the Notice of Appeal suffices as initiation of the appeal

Reasoning

The Claimant argued no appeal had been filed, making stay superfluous. The court held that under the Rules the Notice of Appeal is taken as initiation of the appeal, so as far as the law is concerned the appeal is underway, and Order 42 Rule 6(4) deems an appeal filed where notice has been issued to the Court of Appeal.

p. 2

Legal principles established

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  • The filing of a Notice of Appeal is taken as the initiation of the appeal for purposes of stay pending appeal
  • A bank guarantee is an acceptable mode of furnishing security for costs

Court orders

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  1. 1.Stay of execution of the judgment of 19th November 2018 and all consequential orders granted pending determination of the appeal
  2. 2.The entire decretal sum due and payable as of 23rd May 2019 to be deposited in an interest earning account in the joint names of the Advocates for the parties within 30 days
  3. 3.The auctioneer's charges to be settled by the Respondent within 15 days
  4. 4.In default of these conditions the stay to lapse on expiry of the 30 days
  5. 5.Parties be at liberty to apply

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6; Order 42 Rule 6(4)

Cases cited (1)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Justin Mutunga David v China Road & Bridge Corporation (K) Limited [2019] KEELRC 1631 (KLR)", Case Analysis (2019). Motion dated 2nd May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1631/eng@2019-05-23

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