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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 1113 (KLR)

Halima Gababa Abdulahi v Lee Kinyanjui & another [2020] KEELRC 1113 (KLR)

Employment and Labour Relations Court
11 May 2020
MMM. Mbaru
1,238 words in judgment
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The bottom line

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The Employment Court refused to pause judgment enforcement because the applicant waited eight months, filed no appeal, and offered no security.

What this practically means

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Executive summary

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The petitioner, whose employment petition was dismissed with costs on 29th April 2019, filed an application on 17th December 2019 seeking stay of execution of that judgment and decree, including the consequential taxation of party and party costs, on the basis that she intended to appeal and that execution would render the intended appeal nugatory. She also claimed she had lost her job and could not pay the taxed costs of approximately Ksh.483,155. The respondent, through County Secretary Benjamin Njoroge, opposed the application as filed with inordinate and unexplained delay, since the bill of costs had been filed on 11th June 2019 and taxed on 11th December 2019 before the petitioner moved the court, and because she demonstrated no substantial loss and offered no security. The court, M. Mbaru J, held that Rule 32 of the ELRC (Procedure) Rules, 2016 imports Order 42 Rule 6 of the Civil Procedure Rules into employment claims, requiring proof of substantial loss, absence of unreasonable delay, and security. The petitioner's eight-month delay was unexplained, no appeal - not even a Notice of Appeal or draft memorandum - had been filed, and her assertion of lost employment lacked foundation. Balancing the parties' competing interests, the court found no good cause to deny the successful litigant the fruits of judgment and dismissed the application with costs to the respondent on 11th May 2020, delivery being effected electronically under COVID-19 directives.

Key legal issues

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01

Whether stay of execution pending appeal was merited

Holding

Stay was refused because the petitioner delayed eight months before applying, had filed no appeal (not even a Notice of Appeal or draft memorandum), showed no substantial loss beyond stating she lost her job, and offered no security

Reasoning

Rule 32 of the ELRC (Procedure) Rules, 2016 imports the Civil Procedure Act and Rules into execution of employment claims, so Order 42 Rule 6 conditions apply. The petitioner sat back until the respondent's bill of costs was filed, served and taxed before moving to court. Her claim that she could not pay costs because she lost employment had no foundation. Granting stay on such facts would stall the course of justice without good cause.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must establish substantial loss, that the application was made without unreasonable delay, and must furnish security for the due performance of the decree
  • In a stay application the court balances the successful litigant's right to enjoy the fruits of judgment against the unsuccessful litigant's right of appeal being rendered nugatory

Court orders

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  1. 1.The application dated 17th December 2019 seeking stay of execution of the judgment delivered on 29th April 2019 was found without merit and dismissed with costs to the respondent
Jurisdiction invoked
Rule 32 of the Employment and Labour Relations Court (Procedure) Rules, 2016 read with 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, "Halima Gababa Abdulahi v Lee Kinyanjui & another [2020] KEELRC 1113 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1113/eng@2020-05-11

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