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ELRCAllowedNot stated in judgment· [2020] KEELRC 285 (KLR)

Stephen Chase Kisaka v Emirates Airline Limited [2020] KEELRC 285 (KLR)

Employment and Labour Relations Court
29 October 2020
HWHellen Wasilwa
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 court paused enforcement of an award against Emirates Airline pending appeal, but only after the airline agreed to pay half and secure the rest.

What this practically means

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Executive summary

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Emirates Airline Limited, the Applicant, moved the Employment and Labour Relations Court by Notice of Motion dated 25th September 2020 under Sections 3, 12 and 13 of the Employment & Labour Relations Court Act and Order 42 rule 6 of the Civil Procedure Rules, seeking stay of execution of the court's judgment of 21st May 2020 awarding the Claimant Kshs 6,650,695 plus USD 27,000 with costs and interest, pending an intended appeal to the Court of Appeal. The Applicant argued it had filed a notice of appeal promptly, that the decretal sum was substantial and unlikely to be recoverable from the Claimant whose means were unknown, and that it was willing to provide security. The Claimant opposed, citing the Applicant's five-month delay, lack of proof of substantial loss, his own financial capacity as a property owner and Chief Operating Officer, and proposed conditional release of half the decretal sum. Counsel filed written submissions citing authorities on substantial loss, delay, and security. The court, through Lady Justice Hellen Wasilwa, held that the application met the Order 42 rule 6(2) threshold, that it was filed without delay, and that the burden of proving capacity to refund the decretal sum lay on the Claimant, who failed to demonstrate it. The court found the application merited and granted a conditional stay: the Applicant to pay the Claimant half the decretal sum and deposit the other half in an interest-earning joint account in the names of counsel within 30 days, failing which execution to proceed. No costs order was pronounced.

Key legal issues

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01

Substantial loss and ability to refund the decretal sum

Holding

The Claimant, having asserted he could refund the decretal sum, bore the onus of proving it and failed to do so; the stay application was therefore merited.

Reasoning

The court examined the averments of the parties under Order 42 rule 6(2). The Applicant certified willingness to provide security and asserted the Claimant could not refund the decretal sum. The court held the evidential burden lay on the Claimant to demonstrate his means and ability to refund, which he did not discharge, warranting the exercise of discretion in favour of stay on conditions.

p. 2

Legal principles established

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  • The burden of demonstrating ability to refund the decretal sum if the appeal succeeds rests on the respondent to the stay application

Court orders

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  1. 1.Stay of execution of the judgment delivered on 21st May 2020 granted on condition that the Respondent pays the Claimant half the decretal sum
  2. 2.The other half of the decretal sum to be deposited in an interest-earning account held in joint names of Counsel on record within 30 days
  3. 3.In default of compliance, execution to proceed

Authorities

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Legislation

  • Employment & Labour Relations Court ActSections 3, 12(i), (ii) and (viii), 13
  • Civil Procedure Rules, 2010Order 42 rule 6(2)(a) and (b)

Cases cited (11)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Halai & another v Thornton & Turpin (1963) Ltd
    [1990] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another
    [2006] eKLR
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • Absolom Oluchina v Joseph Wagukhu
    [2016] eKLR
  • Focin Motorcycle Co. Limited vs Ann Wambui Wangui & another
    [2018] eKLR
  • Kenya National Union of Nurses v Nairobi County Government & 5 others
    [2016] eKLR
  • Chris Munga N. Bichange vs. Richard Nyagaka Tongi &_ Others
    (2013) eKLR
  • Victory Construction v BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Charles Nyamwega v Asha Njeri Kimata & another
    [2017] eKLR
  • Benson Ndwiga Njue & 108 others v Central Glass Industries Limited
    [2019] eKLR
Jurisdiction invoked
Sections 3, 12(i), (ii) and (viii) and 13 of the Employment & Labour Relations Court Act, 2011 and Order 42 rule 6 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, "Stephen Chase Kisaka v Emirates Airline Limited [2020] KEELRC 285 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/285/eng@2020-10-29

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