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ELRCPartially AllowedApplication dated 18th January 2019 (Notice of Motion)· [2019] KEELRC 1753 (KLR)

Hellen Waseka v Middle East Bank Kenya Limited [2019] KEELRC 1753 (KLR)

Employment and Labour Relations Court
30 April 2019
HWHELEN WASILWA
1,606 words in judgment
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The bottom line

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The Employment Court extended a stay of execution, but only if the losing party deposits the full judgment amount in a joint interest-earning account within 60 days.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 18th January 2019 under Rules 32(2) and 33(1)(d) of the ELRC (Procedure) Rules, 2016 seeking extension of a 30-day stay of execution granted on 20th December 2018 after judgment, and further extension until determination of an intended application for stay pending appeal in the Court of Appeal under Rule 5(2)(b). The Applicant, through the affidavit of Felix Ngang'a Karanja, explained delays in obtaining the judgment, proceedings and certified copies, and noted that a Notice of Appeal had been filed (Nairobi Civil Appeal No. 36 of 2019). The Claimant opposed through a Replying Affidavit of Geoffrey Eric Odongo, contending the application was fatally defective, an abuse of process, a delaying tactic to deny the Claimant the fruits of judgment, and that the Applicant should instead have moved under Order 42 Rule 6 of the Civil Procedure Rules. In submissions, the Claimant relied on authorities on substantial loss and security, while the Applicant maintained the application rested on the court's inherent jurisdiction, rendering those authorities inapplicable, and offered to accept a 15-day stay after taxation. The court found no execution had commenced and taxation was pending. Given the pending appeal, it declined to make any order destroying the substratum of the appeal and allowed stay on condition that the Respondent deposit the entire decretal sum in an interest-earning account in the joint names of counsel within 60 days, failing which execution could proceed upon taxation and issuance of decree. Costs were awarded in the cause.

Key legal issues

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01

Extension of interim stay pending an intended application in the Court of Appeal

Holding

Stay granted conditionally on deposit of the decretal sum, balancing the appeal's viability against the claimant's right to fruits of judgment

Reasoning

The court found no execution had commenced and taxation was pending. Noting the Notice of Appeal had been filed at the Court of Appeal, the court held it should not make any order destroying the substratum of the appeal, but conditioned the stay on security by way of deposit of the decretal sum in a joint interest-earning account within 60 days, failing which execution could proceed.

p. 3
02

Whether the application should be tested against Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The Respondent argued the application was brought under the ELRC's inherent jurisdiction under Rule 33(1)(d), not Order 42 Rule 6, so the claimant's authorities were inapplicable; the court did not decide the point expressly

Reasoning

The Claimant contended the application must satisfy the Order 42 Rule 6(2) test and cited authorities on substantial loss and security. The Respondent countered that the application invoked the court's inherent jurisdiction under Rule 33(1)(d) of the ELRC (Procedure) Rules, 2016, rendering those authorities irrelevant. The court disposed of the matter on conditional-stay grounds without expressly resolving this dispute.

p. 3

Legal principles established

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  • A trial court should not make orders that destroy the substratum of a pending appeal
  • Substantial loss is a qualitative concept, not a mathematical formula

Court orders

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  1. 1.Stay orders allowed on condition that the Respondent deposits the entire decretal sum in an interest earning account held in the joint names of Counsels on record within 60 days
  2. 2.In default of the deposit, execution may proceed upon taxation and issuance of a decree
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 32(2), 33(1)(d)
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (5)

  • Tropical Commodities Ltd & Others Vs International Credit Bank Limited
  • Andrew Kuria Njuguna Vs Rose Kuria Njuguna
    Nairobi Civil Case No. 224 of 2001 (Unreported)
  • Antoine Ndiaye Vs African Virtual University
    (2015) eKLR
  • Macharia T/A Machira & Co. Advocates Vs East African Standard
    (2002) KLR 63
  • Kungu Muthua Vs James Icharia Kungu
    (2015) eKLR
Jurisdiction invoked
Rules 32(2) and 33(1)(d) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and the Court's inherent powers

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, "Hellen Waseka v Middle East Bank Kenya Limited [2019] KEELRC 1753 (KLR)", Case Analysis (2019). Application dated 18th January 2019 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1753/eng@2019-04-30

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