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ELRCDismissedCause No 30 of 2017 (test suit; consolidated causes Nos 30-40, 79-84 of 2017)· [2020] KEELRC 201 (KLR)

Jumaa Mangaro v China Jiangxi International Kenya Limited [2020] KEELRC 201 (KLR)

Employment and Labour Relations Court
26 November 2020
1,989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to delay paying a Kshs. 5.4 million award because it sat on its appeal for months without taking action.

What this practically means

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Executive summary

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This is a ruling on the Respondent's Notice of Motion dated 31st August 2020 (amended 13th October 2020) seeking stay of execution of the judgment of 12th February 2020 in the test suit, Cause No 34 of 2017, and all consequential orders in the 15 consolidated causes (ELRC Nos 30-40, 79-84 of 2017), pending an intended appeal. The Respondent, whose liability with costs totalled Kshs. 5,429,410, argued it would suffer substantial loss as the Claimants were contracted labourers with no fixed abode or income, and offered security. The Claimant opposed, contending the Respondent had gone to sleep after filing a Notice of Appeal, had not exhibited a Memorandum of Appeal, and had failed the Order 42 Rule 6(2) conditions. Ndolo J restated that the three conditions - substantial loss, no unreasonable delay and security - are cumulative and must all be met. The court found the application unreasonably delayed: the Respondent filed its Notice of Appeal on 25th February 2020 but took no steps, including applying for typed proceedings or filing a draft Memorandum of Appeal, until threatened with execution. The COVID-19 pandemic was rejected as an excuse since the Respondent could have acted earlier and online platforms were available. Concluding the application was intended to forestall execution, the court dismissed it with costs to the Claimant and vacated the interim orders granted on 22nd October 2020.

Key legal issues

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01

Unreasonable delay in applying for stay

Holding

The Respondent's application was unreasonably delayed; it lodged a Notice of Appeal on 25th February 2020 but took no steps until threatened with execution, and COVID-19 was no excuse

Reasoning

Judgment was delivered on 12th February 2020. The Respondent filed a Notice of Appeal on 25th February 2020 but thereafter took no steps to progress the appeal. The court held the COVID-19 pandemic was a feeble excuse because the Respondent could have acted before the pandemic and online platforms were available for urgent matters. No typed proceedings were applied for and no draft Memorandum of Appeal was exhibited.

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02

Cumulative satisfaction of Order 42 Rule 6(2) conditions

Holding

An applicant under Order 42 Rule 6 must satisfy all three conditions - substantial loss, no unreasonable delay and security - simultaneously

Reasoning

The court applied the rule and authority to hold that the conditions are cumulative, not alternative. Having failed on the delay condition, the Respondent's application necessarily failed, and the court found the application to be an attempt to forestall execution rather than a genuine step in pursuit of an appeal.

p. 3

Legal principles established

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  • All three conditions in Order 42 Rule 6(2) - substantial loss, no unreasonable delay, and security - must be met simultaneously
  • The primary legal burden of proving that an appeal would be rendered nugatory lies on the stay applicant

Court orders

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  1. 1.The Respondent's Notice of Motion dated 31st August 2020 and amended on 13th October 2020 seeking stay of execution is declined
  2. 2.Costs of the application to the Claimant
  3. 3.The interim orders granted on 22nd October 2020 are vacated

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2)

Cases cited (2)

  • Magnate Ventures v Simon Mutua Muatha & another
    [2018] eKLR
  • Housing Finance Company of Kenya Limited v Sharok Kher Mohamed Ali Hirji
    [2015] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, 2010

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, "Jumaa Mangaro v China Jiangxi International Kenya Limited [2020] KEELRC 201 (KLR)", Case Analysis (2020). Cause No 30 of 2017 (test suit; consolidated causes Nos 30-40, 79-84 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/201/eng@2020-11-26

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