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ELRCDismissedNot stated in excerpt· [2020] KEELRC 825 (KLR)

Ephantus Wambua Macharia v Presbyterian Church of East Africa & Presbyterian Foundation (Cause 1933 of 2015) (Employment and Labour) [2020] KEELRC 825 (KLR)

Employment and Labour Relations Court
26 June 2020
RSRadido Stephen
901 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 refused to pause a Kshs 594,958 award because the losing party could not show the payment would cause it real, provable loss.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court on the Respondents' application for stay of execution of the judgment and decree of 6 March 2020, which had found the Claimant's termination unfair and awarded him Kshs 594,958. The judgment had followed a fresh hearing after the original judgment of 21 June 2019 was set aside at the Respondents' instance. The Respondents sought a stay pending an intended appeal, arguing that they operated a non-profit medical facility and would suffer hardship if forced to pay, that the Claimant could not refund the decretal sum if paid, and that they were ready to provide a bank guarantee. The Claimant opposed the motion, asserting the appeal was not arguable and that the Respondents had not demonstrated his inability to refund. The Court, Radido J, restated the Order 42 principles: absence of inordinate delay, substantial loss, and security. Applying Odunga J in the Wananchi Group case, the Court held that an applicant must show the loss it would suffer, not merely recite the size of the decretal sum. Endorsing Emukule J in Cosmas Kipkoech Sigei, the Court held that a stay will not issue on the ground that the decree-holder is a pauper. The Claimant's unrebutted evidence that he ran an eye clinic defeated the assertion that he was a man of straw. The Court found the Respondents had failed to prove substantial loss and dismissed the motion with costs to the Claimant, notwithstanding the offered security.

Key legal issues

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Substantial loss as a ground for stay of execution pending appeal

Holding

The Respondents failed to demonstrate substantial loss; non-profit status and the decree-holder's alleged inability to refund are not sufficient grounds

Reasoning

The court applied Order 42 principles. Following Odunga J in the Wananchi Group case, an applicant must show in the supporting affidavit the damages it would suffer if stay is not granted, not merely that the decretal sum is large. Following Emukule J in Cosmas Kipkoech Sigei, a stay will not issue on the ground that the decree-holder is a pauper. The Claimant's unrebutted testimony that he operated an eye clinic showed he was not a man of straw.

p. 2

Legal principles established

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  • A litigant's non-profit status cannot excuse it from meeting contractual obligations or legal liabilities found due
  • A stay of execution will not be granted merely because the decree-holder may be unable to refund the decretal sum if the appeal succeeds

Court orders

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  1. 1.The motion seeking stay of execution of the judgment and decree dated 6 March 2020 pending appeal is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42

Cases cited (2)

  • Republic v The Commissioner for Investigations and Enforcement ex parte Wananchi Group Kenya Ltd
    (2014) eKLR
  • Cosmas Kipkoech Sigei v Madrugada Ltd & Ar
    (2010) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court read with Order 42 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, "Ephantus Wambua Macharia v Presbyterian Church of East Africa & Presbyterian Foundation (Cause 1933 of 2015)  (Employment and Labour) [2020] KEELRC 825 (KLR)", Case Analysis (2020). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/825/eng@2020-06-26

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