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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 629 (KLR)

Sarah Adhiambo Awiyo & 2 others v G4S Kenya Limited [2020] KEELRC 629 (KLR)

Employment and Labour Relations Court
16 July 2020
HWHellen Wasilwa
1,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court paused an KSh 11 million judgment because the losing party filed an appeal and offered security, but only on strict conditions.

What this practically means

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Executive summary

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The Applicant filed a Notice of Motion on 15/3/2020 seeking a stay of execution of the judgment of Hellen Wasilwa J dated 24/2/2020 and delivered on 25/2/2020, by which the Claimant was awarded Kshs. 11,113,710.00 plus costs, pending an intended appeal to the Court of Appeal. The application was supported by the affidavit of Elijah Sitimah, the Applicant's Human Resource Director, who deponed that a temporary 30-day stay had lapsed on 25/3/2020, that the decretal sum was substantial, and that the Respondents' means and assets were unknown, rendering the appeal nugatory if execution proceeded. The 1st Respondent, replying on behalf of the other Respondents, countered that no appeal had been filed within the stay period, that no decree or certificate of costs had been issued, and that the Applicant had not satisfied the Order 42 Rule 6 threshold, particularly substantial loss. The parties filed written submissions. The Applicant relied on Kenya Orient Insurance Ltd v Paul Mathenge Gichuki, ABN Amro Bank v Le Monde Foods and Muriel Ogoudjobi v Mara Ison Technologies, and offered a bank guarantee as security. The Respondents relied on Peter Mutuku Nthuku v Perimeter Protection Limited, arguing money decrees are not rendered nugatory. Allowing the application, the court noted the appeal had been preferred and security was offered, and granted a conditional stay: the decretal sum to be deposited in an interest-earning account in the joint names of counsel within 60 days, failing which execution to issue. No express costs order was made.

Key legal issues

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01

Threshold for stay of execution under Order 42 Rule 6

Holding

The court found the threshold met on the basis that an appeal had been preferred and security was offered, and granted a conditional stay

Reasoning

Guided by Order 42 rule 6(2), the court noted the Respondents' averment that an appeal had been preferred and their readiness to offer a bank guarantee as security. On that basis the court found reasons warranting a stay so the appeal would not be rendered an academic exercise, conditioning the stay on deposit of the decretal sum in a joint interest-earning account within 60 days, failing which execution would issue.

p. 2

Legal principles established

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  • Where an appeal is preferred and security is offered, stay may be granted on terms to preserve the appeal

Court orders

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  1. 1.Stay of execution of the judgment of Hellen Wasilwa J dated 24/2/2020 and delivered on 25/2/2020 is granted pending the hearing and determination of the intended appeal
  2. 2.Stay granted on condition that the decretal sum is deposited in an interest-earning account held in the joint names of Counsels on record within 60 days, in default execution to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActOrder 42 rule 6(2)

Cases cited (4)

  • Kenya Orient Insurance Co. Ltd v Paul Mathenge Gichuki & another
    [2014] eKLR
  • ABN Amro Bank N.V v Le Monde Foods Limited
    Civil Application No NAI 15 of 2002
  • Muriel Ogoudjobi v Mara Ison Technologies Kenya Limited
    [2016] eKLR
  • Peter Mutuku Nthuku v Perimeter Protection Limited
    [2019] eKLR
On appeal from
Employment and Labour Relations Court
Not stated in judgment
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure 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, "Sarah Adhiambo Awiyo & 2 others v G4S Kenya Limited [2020] KEELRC 629 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/629/eng@2020-07-16

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