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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1252 (KLR)

Guyo Huka v Mawara Holding Limited [2020] KEELRC 1252 (KLR)

Employment and Labour Relations Court
15 April 2020
1,464 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 allowed a late appeal to proceed, but only because the applicant agreed to deposit the full decretal sum as security within 30 days.

What this practically means

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Executive summary

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The Applicant, dissatisfied with a ruling delivered on 23 September 2019 dismissing its application for stay and review as res judicata, filed a Notice of Appeal on 22 October 2019, outside the stipulated period. By a Notice of Motion dated 28 October 2019, it sought that the Notice of Appeal be deemed duly filed, and stay of execution of any order or decree arising from the ruling pending the intended appeal. The Applicant, through the affidavit of its director Peter Chege Kiarie, explained the delay by its advocate's absence from the country and the unavailability of typed proceedings and the court file. The Respondent opposed, contending the application was brought in bad faith, filed over a month after the ruling, that the advocate's travel was a false hood, and that no security had been deposited. The Applicant relied on authorities on extension of time (including the four factors in Monica Malel), on the requirement of a high chance of success, and on the position that the stay sought preserved the subject matter under Order 42 Rule 6. The Respondent relied on authorities that mere financial burden does not constitute substantial loss and that deposit of the entire decretal sum is a proper condition for stay. The Court noted the Applicant's willingness to provide security and, to preserve the substratum of the appeal and avoid rendering it nugatory, allowed the application for stay pending appeal on condition that the entire decretal sum be deposited in a joint interest-earning account in the joint names of counsel on record within 30 days, in default of which execution was to issue. The judgment was delivered in chambers via Zoom on 15 April 2020 by Lady Justice Hellen Wasilwa, with no appearance by the parties.

Key legal issues

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01

Whether to extend time / deem the Notice of Appeal filed out of time

Holding

The Court exercised its discretion in favour of the Applicant, treating the appeal as preserved by granting stay pending appeal.

Reasoning

The Court considered the parties' averments and noted the Applicant's willingness to provide security. Rather than analysing each extension-of-time factor separately, the Court preserved the substratum of the intended appeal by granting conditional stay, effectively allowing the appeal to proceed despite the delay.

p. 3
02

Whether stay of execution of the order of 23/9/2019 should issue pending appeal

Holding

Stay granted on condition that the entire decretal sum is deposited in a joint interest-earning account of counsel within 30 days; in default, execution to issue.

Reasoning

The Court reasoned that the stay was necessary to preserve the substratum of the appeal and avoid rendering it nugatory. The deposit of the decretal sum served as security protecting the Respondent should the appeal fail. This follows the principle the Applicant urged, that a stay may preserve the subject matter rather than merely prevent the appeal being rendered nugatory.

p. 3

Legal principles established

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  • A court may grant stay of execution pending appeal conditional on the applicant depositing the entire decretal sum as security, in default of which execution issues.

Court orders

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  1. 1.Application for stay pending appeal allowed on condition that the Applicant deposits the entire decretal sum in a joint interest-earning account held in the joint names of Counsel on record within 30 days
  2. 2.In default of the deposit, execution to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (9)

  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    [2015] eKLR
  • Monica Malel & another v Republic & 2 others
    [2009] eKLR
  • Omariba Elijah Kemonde v Secretary, Teachers Service Commission
    [2017] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Focin Motorcyle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • Machira t/a Machira & Co. Advocates v East Africa Standard (No.2)
    KLR 63
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Abdi Ali Noor v Transami (Kenya) Ltd
    Nairobi Milimani Civil Case No. 267 of 2005 (unreported)
  • Motres Limited v Akamba Road Services Ltd & Another
    Nairobi High Court Civil Case No. 1824 of 2000 (Unreported)
Jurisdiction invoked
Inherent discretion of the Court and Order 42 Rule 6 of the Civil Procedure Rules (extension of time and stay of execution pending appeal)

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, "Guyo Huka v Mawara Holding Limited [2020] KEELRC 1252 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1252/eng@2020-04-15

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