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ELRCPartially AllowedCause No 410 of 2018· [2019] KEELRC 2224 (KLR)

Ahmed Mohammed Dagane v County Service Board Garissa County [2019] KEELRC 2224 (KLR)

Employment and Labour Relations Court
12 February 2019
HWHellen Wasilwa
1,912 words in judgment
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The bottom line

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A Kenyan employment court granted a stay of execution only on condition the disputed money is deposited in a joint interest-earning account within 30 days.

What this practically means

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Executive summary

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This is a first-instance ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, on a Notice of Motion dated 28th September 2018 in which the Respondent/Applicant sought a stay of execution of a Ruling delivered on 16th July 2018 dismissing its application for review, and of an order made on 21st March 2018 directing payment of salary arrears of Kshs 2,728,063 and monthly salary of Kshs 473,689 pending hearing and determination of the claim, and of a intended appeal. The application was brought under Order 42 Rule 6(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 12 of the Employment and Labour Relations Court Act. The applicant argued it had filed a Notice of Appeal, would suffer substantial loss, and that the appeal would be rendered nugatory. The Claimant/Respondent opposed, asserting abuse of process, absence of a real appeal, and his own means to refund the decretal sum of Kshs 3,000,000 if the appeal succeeded. Parties filed written submissions citing authorities on the Order 42 Rule 6(2) conditions. The court held that stay applications must follow promptly on the heels of the impugned orders, that reasonable time should not exceed one month, and found the applicant had approached the court almost six months late and had not demonstrated irreparable harm. However, since the claimant had not demonstrated sources of income to refund the decretal sum if the appeal succeeded, the court allowed the stay on condition that the decretal sum be deposited in an interest-earning account in the joint names of counsel within 30 days, failing which execution to issue. Costs were in the cause.

Key legal issues

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Whether the applicant for stay pending appeal satisfied the twin requirements of substantial loss and reasonable delay under Order 42 Rule 6(2)

Holding

The applicant failed to show irreparable harm and delayed nearly six months, but stay was nonetheless granted conditionally because the claimant failed to demonstrate ability to refund the decretal sum, meaning the appeal could be rendered nugatory

Reasoning

The court applied the three conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay and security. It found the six-month delay excessive, defining reasonable time as not exceeding one month, and found no demonstration of irreparable harm. However, the claimant's unsubstantiated assertion that he is a man of means meant the court could not be satisfied the decretal sum would be recoverable, so it exercised discretion to grant a conditional stay with the deposit serving as security, with execution to issue on default.

p. 3

Legal principles established

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  • Orders of stay should follow on the heels of the impugned orders; reasonable delay in seeking stay should not exceed one month.
  • Where the decree-holder has not demonstrated sources of income sufficient to refund the decretal sum should the appeal succeed, stay may be granted conditional on deposit of the decretal sum so the appeal is not rendered nugatory.

Court orders

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  1. 1.Stay of execution of the Ruling delivered on 16th July 2018 and the Order made on 21st March 2018 granted on condition that the Claimant/Respondent deposits the decretal sum in an interest earning account held in the joint names of counsels on record within 30 days
  2. 2.In default of the deposit, execution to issue
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 51 Rule (1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court ActSection 12
  • Court of Appeal Rules, 2010Rules 75, 77 and 82(1)

Cases cited (9)

  • Tabro Transporters Limited v Absalom Dovalumbasi
    (2012) eKLR
  • Erinford Properties v Cheshire
    (1974) 2 ALL ER 448
  • Shivabhai Nathabhai Patel v Manibhai Hathibhai Patel
    (1959) EA 907
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    Bungoma H.C Misc Application No. 42 of 2011
  • Andrew Leteipa Sunkuli & Another v Southern Credit Banking Corporation
    (2006) eKLR
  • Cotenca Inspection SA v Hems Group Trading Company Limited
    Civil Application Number NAI 303 of 2000
  • Elena D. Korir v Kenyatta University
    (2012) eKLR
  • Halal & Another v Thornton & Turpin Limited
  • Masisi Mwita v Damaris Wanjiru Njeri
    (2016) eKLR
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 12 of the Employment and Labour Relations Court Act

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, "Ahmed Mohammed Dagane v County Service Board Garissa County [2019] KEELRC 2224 (KLR)", Case Analysis (2019). Cause No 410 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2224/eng@2019-02-12

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