Ruth Adhiambo Apindi v Unilever Kenya Limited [2020] KEELRC 493 (KLR)
The bottom line
#A Kenyan employment court confirmed it can grant a stay of execution even after a Notice of Appeal is filed, but only if the losing party secures the money first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the trial court to grant stay pending appeal despite a Notice of Appeal
The Court retains jurisdiction to entertain a stay application notwithstanding the lodging of a Notice of Appeal; it is not functus officio
The Claimant argued that lodging a Notice of Appeal rendered the Court functus officio and that the application belonged before the Court of Appeal under Rule 5(2)(b). The Applicant relied on Order 22 Rule 22 and authorities showing stay applications may be filed in the court of first instance or the appellate court. The court accepted that lodging an intended appeal does not deprive it of jurisdiction to hear a stay application.
Whether the Applicant met the Order 42 Rule 6 threshold for stay
The Applicant satisfied the conditions: the application was filed timeously, substantial loss/nugatory appeal was demonstrated, and the Applicant was willing to furnish security
The court enumerated the Order 42 Rule 6(2) conditions: timeous filing, substantial loss, and security. It found the application filed without unreasonable delay, accepted that the appeal would be rendered nugatory if the decretal sum were paid out and could not be recovered, noted the Applicant's willingness to abide by security conditions, and therefore found the application merited.
Legal principles established
#- An application for stay of execution may be filed in the court of first instance notwithstanding lodgment of a Notice of Appeal
- The conditions for stay under Order 42 Rule 6 are substantial loss, application without unreasonable delay, and furnishing of security
Court orders
#- 1.Stay of execution of the Judgment delivered on 28th May 2020 granted on condition that the decretal sum is deposited in an interest earning account held in joint names of the Counsels on record within 60 days, in default execution to proceed
- Jurisdiction invoked
- Section 12(3)(viii) of the Employment and Labour Relations Court Act, 2011; Rule 17(1) of the ELRC (Procedure) Rules, 2016; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Adhiambo Apindi v Unilever Kenya Limited [2020] KEELRC 493 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/493/eng@2020-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.