Daniel Omondi Ogada & 2 others (Members of the Homa Bay County Public Service Board) v County Assembly of Homa Bay & 2 others [2020] KEELRC 132 (KLR)
The bottom line
#A Kenyan court halted enforcement of a judgment against Homa Bay County officials, but only on strict conditions: pay what is owed by 5 January 2021 or the protection disappears automatically.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / abuse of court process by parallel applications
The objection was not treated as decisive because the parallel Motion before the Court of Appeal had been withdrawn
The Respondents had filed a similar stay application before the Court of Appeal (Kisumu Civil Application No. 126 of 2020) and then moved this Court. When duplicity was raised, they filed a further affidavit deposing that the Court of Appeal Motion had been withdrawn on 11 November 2020. With the withdrawal, the Court declined to consider the sub judice/abuse objection as decisive.
Conditions for stay of execution pending appeal
Delay not an issue as the Motion was filed within weeks; substantial loss was shown in part through budgeting and audit query concerns; security in the form of deposit of remuneration was ordered
The Court restated the Order 42 principles: discretion, sufficient cause, no inordinate delay, substantial loss and security. The Motion was filed within weeks of judgment so delay did not arise. The Petitioners did not respond to the budgeting/audit assertions nor show they could refund remuneration if the appeal succeeded, supporting substantial loss. The Court however balanced this against the judgment creditors' entitlement to enjoy the fruits of judgment and the public interest.
Material non-disclosure by the Petitioners in earlier proceedings
The Court noted its own earlier definitive finding of material non-disclosure by the Petitioners and factored it into the balancing of scales in fashioning conditional relief
In the Ruling of 30 July 2020 on a contempt application, the Court had found the Petitioners failed to make material disclosure when seeking interim conservatory orders. Such a finding ordinarily disentitles a party to relief. The Court acknowledged that this finding was not addressed when the main judgment's remedies were fashioned, and it informed the discretionary balance in this ruling.
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
- Substantial loss must be demonstrated clearly in the supporting affidavit; it is not sufficient to merely state that the decretal sum is large
- A finding of material non-disclosure ordinarily disentitles a party to the exercise of the Court's discretion in their favour
Court orders
#- 1.Stay of execution pending Appeal is granted on condition that the Petitioners are paid all outstanding remuneration and allowances up to end of December 2020 on or before 5 January 2021
- 2.The remuneration the Petitioners would have earned up to the end of their terms of office are deposited into Court on or before 5 January 2021
- 3.In default of compliance with (a) and (b) above, the stay order will automatically lapse without any further Court order or directions
- Jurisdiction invoked
- Section 12(3)(i) of the Employment and Labour Relations Court Act, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Omondi Ogada & 2 others (Members of the Homa Bay County Public Service Board) v County Assembly of Homa Bay & 2 others [2020] KEELRC 132 (KLR)", Case Analysis (2020). Petition at Employment and Labour Relations Court (Homa Bay County Public Service Board removal petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/132/eng@2020-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.