Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No. 943 of 2015 (application dated 21st September 2020)· [2020] KEELRC 249 (KLR)

Peter Wanyama Ojiambo & another v Technical University of Kenya & 2 others [2020] KEELRC 249 (KLR)

Employment and Labour Relations Court
6 November 2020
MOMaureen Onyango
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a 73-year-old employee to immediately collect Kshs.1.3 million despite a pending appeal, ruling that only a stay order can block execution.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) on an application dated 21st September 2020 by Albert Peter Were Achoka, the claimant in Cause No. 943 of 2015. Judgment had been delivered on 17th July 2019 awarding each claimant Kshs.1,308,008 (unpaid salary, gratuity and compensation), but costs had not been taxed. The Applicant, a 73-year-old diagnosed with multiple myeloma, sought orders that the decree be executed forthwith before taxation, citing his urgent need for expensive medical treatment and the Respondent's refusal to pay. The Respondent opposed through a replying affidavit by its counsel, asserting that a notice of appeal had been filed and an application for stay was pending before the Court of Appeal. The Applicant countered that the stay application had neither been served nor certified urgent, no memorandum of appeal or request for proceedings had been filed, and more than 60 days had passed since judgment. The court, relying on section 94 of the Civil Procedure Act and Order 49 Rule 5, and applying African Commuter Services Ltd and Mercedes Sanchez Rau Tussel, held that a decree holder is entitled to the fruits of judgment absent stay orders, and that the pending appeal process appeared designed to delay. The application was allowed: the Respondent was ordered to pay Kshs.1,308,008 immediately, with liberty to execute after 14 days in default; the balance of the decree awaited taxation or the stay application, whichever came earlier; and the Respondent was ordered to pay the costs of the application.

Key legal issues

#
01

Whether a decree may be executed before taxation of costs where the judgment debtor has filed a notice of appeal and an application for stay in the Court of Appeal

Holding

Yes. Section 94 of the Civil Procedure Act empowers the court to order execution of the decree forthwith except as to costs. No stay orders were in place, the Respondent had not applied for certified proceedings, filed a memorandum of appeal, or sought extension of time, and the application for stay had not been certified urgent or served, indicating an intent to delay.

Reasoning

The court invoked its inherent power to do justice in the particular circumstances of the case. The Applicant, a 73-year-old suffering multiple myeloma, needed the decretal sum for medical treatment. The court found no demonstrated intention by the Respondent to file an appeal, holding that the notice of appeal and stay application were intended to delay the Applicant from benefiting from the fruits of his judgment.

p. 3

Legal principles established

#
  • A decree holder is entitled to enjoy the fruits of his judgment unless there are orders of stay; the pendency of an application for stay or an intended appeal is not a bar to execution.
  • Section 94 of the Civil Procedure Act permits execution of a decree before ascertainment of costs by taxation, except as to costs.

Court orders

#
  1. 1.The Respondent do release to the Applicant the sum of Kshs.1,308,008 as awarded in the judgment immediately pending taxation of the claimant's bill of costs; should the Respondent not pay within 14 days, the Applicant is at liberty to execute the decree
  2. 2.The rest of the decree awaits taxation and/or hearing and determination on the Respondent's application for stay of execution, whichever is earlier
  3. 3.The Respondent pays the costs of this application

Authorities

#

Legislation

  • Civil Procedure ActSection 94
  • Civil Procedure RulesOrder 49 Rule 5
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • African Commuter Services Ltd v Kenya Civil Aviation Authority & 2 Others
    [2014] eKLR
  • Mercedes Sanchez Rau Tussel v Samken Ltd & 2 Others
    [2002] eKLR
Jurisdiction invoked
Section 94 of the Civil Procedure Act and Order 49 Rule 5 of the Civil Procedure Rules; inherent powers of the Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Wanyama Ojiambo & another v Technical University of Kenya & 2 others [2020] KEELRC 249 (KLR)", Case Analysis (2020). Cause No. 943 of 2015 (application dated 21st September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/249/eng@2020-11-06

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