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ELRCPartially AllowedNot stated in the excerpt (application for stay of execution pending appeal)· [2020] KEELRC 150 (KLR)

Banking Insurance and Finance Union v National Bank of Kenya Limited [2020] KEELRC 150 (KLR)

Employment and Labour Relations Court
4 December 2020
MOMAUREEN ONYANGO
3,788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court halted execution of a Kshs 20.7 million unfair termination award only on condition that half be paid to the dismissed employees within 30 days.

What this practically means

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Executive summary

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Following the judgment of Onyango J delivered on 21st February 2020 awarding 12 months' salary compensation to grievants in an unfair termination suit, the Applicant (Respondent in the suit) applied for stay of execution pending an intended appeal to the Court of Appeal, invoking Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and Rule 5 of the Court of Appeal Rules. The Applicant argued that the appeal was arguable - contesting the quantum of compensation - and that the decretal sum would be irrecoverable because the grievants were unemployed. The Claimant opposed, relying on authorities that money decrees are rarely rendered nugatory by payment and that both limbs for stay must be satisfied. The court held the threshold comprised both Order 42 Rule 6 and Rule 5 principles. It found the appeal arguable only on quantum, since the absence of any disciplinary process had been admitted in the main judgment. On the nugatory limb, the Applicant's averments were unsupported by evidence, but the Claimant also did not controvert them; the court nonetheless held that, the terminations being unfair under Section 41, the grievants would not be left empty handed. Balancing the grievants' valid decree with the Applicant's right to appeal, the court granted a conditional stay: 50% of the agreed decretal sum of Kshs.20,669,412/- to be deposited in a joint interest-earning account, and 50% released to the grievants within 30 days. Costs of the application were made costs in the appeal. Delivered at Nairobi on 4th December 2020 by Maureen Onyango, Judge, via video conferencing pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Applicant satisfied the twin principles for stay of execution pending appeal (arguable appeal and nugatory-ness)

Holding

The appeal was arguable only on quantum of compensation; the nugatory limb failed because the grievants were unlikely to be left empty handed. Stay was granted conditionally on deposit and release of the decretal sum.

Reasoning

The court held it could not determine the merits of the appeal, but from the grounds only quantum was contested since the absence of a disciplinary process was admitted. On substantial loss, the averment that grievants were men of straw was unsupported, and since termination was unfair under Section 41, grievants would recover at least part of the award. The court balanced the Applicant's right to appeal with the grievants' valid decree and granted a conditional stay releasing half the decretal sum.

p. 4

Legal principles established

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  • The threshold for stay pending appeal to the Court of Appeal comprises both the Order 42 Rule 6(1) and (2) Civil Procedure Rules principles and Rule 5 of the Court of Appeal Rules
  • Where termination is found unfair, an applicant for stay cannot show the appeal will be rendered nugatory because the grievants will recover at least part of the award; a conditional stay releasing half the decretal amount is appropriate

Court orders

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  1. 1.The Applicant is granted stay of execution pending appeal on condition that they deposit 50% of the decretal sum agreed at Kshs.20,669,412/- into a joint interest earning account in the name of the Claimant Union and Counsel for the Applicant, which may be held at the Applicant's bank
  2. 2.50% of the decretal sum to be released to the grievants within 30 days from date of the ruling
  3. 3.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Court of Appeal RulesRule 5(2)(b)
  • Employment ActSections 41 and 49(4)
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 48 and 159(2)(d)

Cases cited (10)

  • Meteine Ole Kilelu & 10 Others v Moses K. Nailole
    Civil Appeal No. 340 of 2018
  • Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & another
    [2017] eKLR
  • Mukuna v Abuoga
    (1988) KLR 645
  • John Mwangi Ndiritu v Joseph Ndiritu Wamathai
    [2016] eKLR
  • Congress Rental South Africa v Kenyatta International Convention Centre: Co-operative Bank of Kenya Limited and Another (Garnishee)
    (2019) eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Kenya Shell Limited v Benjamine Karuga Kibiru and Ruth Wairimu Karuga
    Civil Appeal No. Nai 97 of 1986 (KAR 1982-88)
  • Freight in Time Limited v Rosebell Wambui Muthee
    Civil Appeal No. Nai 201 of 2013 (UR145/2013)
  • Republic v Kenya Anti-Corruption Commission and Others
    (2009) KLR 31
  • Amal Hauliers Limited v Abdulnasir Abukar Hassan
    Civil Appeal No. 18 of 2017
On appeal from
Employment and Labour Relations Court (judgment of Onyango J)
Not stated
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules; Rule 5 of the Court of Appeal Rules

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, "Banking Insurance and Finance Union v National Bank of Kenya Limited [2020] KEELRC 150 (KLR)", Case Analysis (2020). Not stated in the excerpt (application for stay of execution pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/150/eng@2020-12-04

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