Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNairobi Civil Appeal 577 of 2019 (stay application arising from ELRC Cause judgment of 15.3.2019)· [2020] KEELRC 21 (KLR)

Clarice Odhiambo v The Coca-Cola Company & 2 others [2020] KEELRC 21 (KLR)

Employment and Labour Relations Court
10 December 2020
2,876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court paused enforcement of an award against Coca Cola, requiring the money be safely parked in a joint account while the appeal proceeds.

What this practically means

#

Executive summary

#
On 15 March 2019 the ELRC entered judgment of KShs 11,165,766.00 in favour of the Claimant for unlawful termination on account of redundancy, plus severance pay, three months' salary in lieu of notice, accumulated leave, costs and interest. The Respondent filed an appeal to the Court of Appeal (Civil Appeal No. 577 of 2019) and the Claimant filed a Notice of Appeal (cross-appeal). Before taxation of the Claimant's party-and-party bill of costs, the Respondent (as Applicant) moved under Order 42 rule 6(2) of the Civil Procedure Rules for stay of execution pending appeal, contending she did not know the Claimant's assets or source of income and that the appeal would be rendered nugatory. She offered to deposit the decretal sum in a joint interest-earning account and argued that the Claimant's pension was statutorily encumbered. The Claimant opposed, arguing a 10-month unexplained delay, that her unclaimed pension of over KShs 19 million showed she was a woman of means, and that she was entitled to the fruits of her judgment. In a further affidavit she alleged over KShs 5 million had been withdrawn from her pension without authority and was in the applicant's hands. Makau J held the delay was not unreasonable because execution could not issue before taxation (Section 94, Civil Procedure Act), following Eldoret Grains Ltd v National Cereals Produce Board. Applying National Industrial Credit Bank v Wasike, he held the claimant, with a vested pension exceeding KShs 19 million, was not a person of straw. Noting the claimant had herself appealed the judgment, the court held it abusive for her to execute a judgment she was challenging, and granted conditional stay: the whole decretal sum plus taxed costs to be deposited within 30 days in a joint interest-earning account, failing which the stay lapses automatically. Costs of the application were made costs in the appeal.

Key legal issues

#
01

Unreasonable delay

Holding

The 10-month delay was not unreasonable because the application was made before taxation of costs, when execution could not lawfully issue without leave.

Reasoning

Section 94 of the Civil Procedure Act bars execution of a superior court decree before ascertainment of costs without leave. Since the claimant's bill of costs had not been taxed, there was no imminent danger of execution, and the judgment-debtor need not rush to seek stay. The applicant filed before the certificate of taxation issued, so the delay was explained.

p. 3
02

Substantial loss and the claimant's means

Holding

The claimant, holding a vested pension of over Kshs 19 million, is not a person of straw; the applicant's apprehension of inability to recover the decretal sum was rebutted.

Reasoning

The legal burden lay on the applicant to show the decree-holder could not refund the decretal sum on a successful appeal. Once the claimant demonstrated substantial pension savings, over KShs 5 million of which had been withdrawn without her authority and was in the applicant's hands, the applicant's generalized apprehension was displaced. Whether the pension can be attached was irrelevant.

p. 3
03

Cross-appeal and entitlement to execute

Holding

A claimant who has filed a cross-appeal against a judgment cannot execute that same judgment; conditional stay balancing both parties' interests was appropriate.

Reasoning

The claimant had filed a Notice of Appeal challenging the same judgment she sought to execute. The court held it abusive to impugn a judgment on appeal while purporting to execute it before withdrawing the appeal, and adopted the applicant's proposal to deposit the decretal sum plus taxed costs in a joint interest-earning account as security.

p. 4

Legal principles established

#
  • Delay in seeking stay is measured against the point when execution became possible, i.e. after taxation of costs, since execution before ascertainment of costs requires leave
  • The applicant bears the legal burden of showing substantial loss, but once inability to repay is alleged, the evidential burden shifts to the decree-holder to show resources
  • A party cannot challenge a judgment on appeal yet execute that same judgment before withdrawing the appeal

Court orders

#
  1. 1.Stay of execution of the judgment delivered on 15th March 2019 granted pending the hearing and determination of Nairobi Civil Appeal 577 of 2019; Coca Cola Central, East & West Africa Limited vs Clarice Odhiambo
  2. 2.Stay conditional upon the whole decretal sum plus the taxed costs of the suit being deposited within 30 days in an interest-earning account in a reputable financial institution in the joint names of counsel on record for both parties
  3. 3.In default of compliance by the applicant, the stay order lapses automatically after expiry of the 30 days' period
  4. 4.Should the default be caused by the claimant, the applicant has liberty to seek leave to deposit the security in Court
  5. 5.Costs of the application to be costs in the Appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure ActSection 94
  • Retirement Benefits ActSection 36
  • Retirement Benefits (Occupational Retirement Benefits Scheme) RegulationsRules 15 and 22
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Anthony Karanja Wainaina vs Adrian Company Limited
    [2020] eKLR
  • Marilyn Mbuthia vs Safaricom Limited
    [2019] eKLR
  • National Industrial Credit Bank Limited vs Aquinas Francis Wasike and Another
    [2006] eKLR
  • Focin Motorcycle Limited vs Ann Wangui & Another
    [2018] eKLR
  • Eldoret Grains Limited vs National Cereals Produce Board
    [2014] eKLR
  • Halal & Another vs Thornton & Turpin (1963) Limited
    [1990] eKLR
  • Equity Bank Limited vs Taiga Adams Company Limited
    [2006] eKLR
  • James Wangalwa & Another vs Agnes Naliaka
    [2012] eKLR
  • Samvir Trustee Limited vs Gurdian Bank Limited Nairobi
    [2007] eKLR
  • Machira T/A & Company Advocates vs East African Standard
    [2002] eKLR
On appeal from
Court of Appeal
Civil Appeal No. 577 of 2019
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal); ELRC Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Clarice Odhiambo v The Coca-Cola Company & 2 others [2020] KEELRC 21 (KLR)", Case Analysis (2020). Nairobi Civil Appeal 577 of 2019 (stay application arising from ELRC Cause judgment of 15.3.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/21/eng@2020-12-10

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