Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the extract (ELRC matter)· [2020] KEELRC 780 (KLR)

Judy Wacera Njau v Belladonna Pharmacy Ltd [2020] KEELRC 780 (KLR)

Employment and Labour Relations Court
2 July 2020
1,214 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court paused payment of a Kshs.1 million award, but only after the employer deposited the full amount into a joint interest-earning account.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi by Makau J on a Notice of Motion dated 18.7.2019 in which the respondent sought stay of execution of a judgment delivered on 31.5.2019 by Onyango J on behalf of Ndolo J, awarding the claimant Kshs.1,000,000 as composite damages for unfair termination through discrimination. The applicant relied on Butt v Rent Restriction Tribunal, Alhyder Trading v Mibei and Rosengers Ltd, contending the appeal was arguable, raised public interest issues, and that the claimant had no steady income, rendering recovery of the decreed sum difficult should the appeal succeed. The claimant opposed, asserting ample means and inability to repay, relying on Kenya Shell v Karuga and Dr. GN Muema v Bishar. The court applied the threshold in Order 42 rule 6(2) of the Civil Procedure Rules. It found no inordinate delay, the application having been lodged within two months of judgment. On substantial loss, applying ABN Amro Bank v Lemond Foods, it held the evidential burden lay on the claimant to show ability to refund, and since she tendered no evidence of income or assets, substantial loss was established. On security, the court granted stay conditional on the whole decretal sum being deposited in an interest-earning bank account in the joint names of both parties' advocates within 21 days. Each party was ordered to bear her own costs. The application was thus allowed on condition, with costs not awarded to either side.

Key legal issues

#
01

Whether the application was made without unreasonable delay

Holding

The application made on 18.7.2019 following judgment delivered on 31.5.2019 was not inordinate delay.

Reasoning

The court compared the date of the impugned judgment with the date of the application and found the interval of less than two months fell short of inordinate delay, satisfying that limb of Order 42 rule 6(2).

p. 2
02

Whether substantial loss had been established

Holding

Substantial loss established because the claimant did not discharge the evidential burden of showing ability to refund the decretal sum.

Reasoning

The claimant alleged she was of ample means but tendered no evidence of income or assets capable of satisfying the decretal sum should the appeal succeed. Relying on ABN Amro Bank and Kenya Shell, the court held that failure to discharge that evidential burden means the applicant stands to suffer substantial loss and the appeal would be rendered otiose after execution.

p. 2
03

Whether suitable security had been offered

Holding

Stay granted conditional on deposit of the whole decretal sum in a joint interest-earning account of both parties' advocates within 21 days.

Reasoning

The court held that stay protecting an appellant must be conditioned on safeguards ensuring the decreed sum is promptly availed to the decree-holder if the appeal fails, and adopted a joint interest-earning bank account as suitable security.

p. 2

Legal principles established

#
  • The legal burden of proving substantial loss remains on the applicant for stay, but where inability to repay is asserted, the evidential burden shifts to the decree-holder to show ability to refund.
  • Stay of execution should be granted on conditions safeguarding the decree-holder's interest should the appeal fail.

Court orders

#
  1. 1.Stay of execution of the judgment and decree granted on condition that the whole decretal sum is deposited in an interest-earning bank account in the joint names of the Advocates for the two parties within 21 days from the date of the ruling
  2. 2.Each party to bear her own costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (6)

  • Butt v Rent Restriction Tribunal
    [1979] KLR
  • Alhyder Trading Company Limited v Lucy Jepngetich Mibei
    [2016] e KLR
  • Rosengers Ltd v Safe Deposit Centres Ltd
    [1984] 3 All ER
  • Kenya Shell Limited v Benjamin Karuga & Another
    [1986] e KLR
  • Dr. GN Muema v Miriam Maalim Bishar & Another
    Civil Appeal No. 20 of 2016
  • ABN Amro Bank N v Lemond Foods Limited
    Civil Application No. 15 of 2002
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Judy Wacera Njau v Belladonna Pharmacy Ltd [2020] KEELRC 780 (KLR)", Case Analysis (2020). Not stated in the extract (ELRC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/780/eng@2020-07-02

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