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ELRCPartially AllowedNotice of Motion dated 5th November 2019 (ELRC Appeal)· [2020] KEELRC 953 (KLR)

Titus Wambua Mwendwa v Elsa’s Kopje Limited [2020] KEELRC 953 (KLR)

Employment and Labour Relations Court
21 May 2020
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court granted a partial stay: the employer pays half the award now, and safeguards the other half while appealing.

What this practically means

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Executive summary

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This was a ruling on the Respondent/Applicant's Notice of Motion dated 5th November 2019 seeking a temporary and substantive stay of execution of the Employment and Labour Relations Court judgment delivered on 15th October 2019, pending an intended appeal. The decretal sum was Kshs. 238,380.00 with costs and interest. The Applicant, a company through its Director Mehdi Jannmohamed, argued that the Claimant, a natural person of unknown means, would be unable to refund the decretal sum if the appeal succeeded, rendering the appeal nugatory, and offered to deposit the decretal sum in a joint interest-earning account. The Claimant, Titus Wambua Mwendwa, opposed, asserting he was in gainful employment earning Kshs. 70,000 per month and owned assets worth over Kshs. 10 million, and that the application was merely a delay tactic. Both parties filed written submissions relying on competing authorities on the Order 42 Rule 6 threshold and the burden of demonstrating ability to refund. Wasilwa J held that the purpose of stay is preservation of the substratum of the appeal, and found the Applicant's offer to deposit the decretal sum sufficient to preserve it. However, the Court found the Claimant's assertions of employment and property ownership unproven by any evidence. Observing that stay is a discretionary remedy and that the decretal sum was not exorbitant, the Court allowed the application conditionally: 50% of the decretal sum to be paid to the Claimant and 50% deposited in a joint interest-earning account of counsel within 60 days, in default of which execution may proceed.

Key legal issues

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01

Whether the threshold for stay of execution pending appeal under Order 42 Rule 6 was met

Holding

Yes, in part. Stay granted conditionally: half the decretal sum to be paid to the Claimant and the other half deposited in an interest-earning joint account within 60 days, failing which execution may proceed.

Reasoning

The Court reasoned that the purpose of stay is preservation of the substratum of the appeal. The Applicant offered to deposit the decretal sum, which preserved the appeal. However, since the remedy is discretionary and the decretal sum was not exorbitant, an unconditional stay was unwarranted; a conditional stay balancing both parties' interests was granted instead.

p. 3
02

Whether the Claimant demonstrated ability to refund the decretal sum

Holding

No. The Claimant's assertions of employment earning Kshs. 70,000 per month and ownership of property worth Kshs. 10 million were not supported by any evidence.

Reasoning

The Court noted that mere submissions and averments are insufficient; a party asserting facts peculiarly within its knowledge must prove them through evidence. The Claimant produced no proof of employment income or property ownership, so his capacity to refund the decretal sum was unestablished, though this did not yield an unconditional stay given the discretionary nature of the remedy.

p. 3

Legal principles established

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  • The main reason warranting issuance of a stay order is to preserve the substratum of the appeal so that the appeal is not rendered nugatory
  • Stay of execution is a discretionary remedy and conditional stay may be granted where the decretal sum would not render the appeal nugatory if partly paid
  • Where a party asserts financial capacity (employment or ownership of property) in submissions, the Court expects proof through evidence

Court orders

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  1. 1.Application for stay allowed on condition that 50% of the decretal sum be paid to the Claimant/Respondent
  2. 2.The other 50% be deposited in an interest earning account held in the joint names of Counsel on record within 60 days
  3. 3.In default of compliance, execution may proceed

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (4)

  • Housing Finance Company Limited Vs Sharok Kher Mohamed Ali Hirji & Another
    (2015) eKLR
  • Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & Another
    (2018) eKLR
  • National Industrial Credit Bank Limited Vs Aquinas Francis Wasike & Another
    (U R) C.A. 238/2005
  • Macharia T/A Macharia & Co. Advocates Vs East African Standard (No. 2)
    (2002) KLR 63
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Sections 1A & 1B of the Civil Procedure Act, Order 42 Rule 6(2) and Order 51 Rule 1 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, "Titus Wambua Mwendwa v Elsa’s Kopje Limited [2020] KEELRC 953 (KLR)", Case Analysis (2020). Notice of Motion dated 5th November 2019 (ELRC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/953/eng@2020-05-21

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