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ELRCAllowedCause No 1970 of 2014· [2020] KEELRC 1277 (KLR)

Simon Titus Yandi v Directline Assurance Co Ltd [2020] KEELRC 1277 (KLR)

Employment and Labour Relations Court
10 March 2020
HWHellen Wasilwa
1,560 words in judgment
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The bottom line

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A Kenyan employment court allowed a late stay of execution application because the losing employer offered to deposit the full decretal amount as security.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Hellen Wasilwa J on 10 March 2020, determines a notice of motion dated 13 November 2019 in which the Respondent/Applicant, the judgment debtor in an employment suit, sought a stay of execution of the court's judgment of 27 May 2019 awarding the Claimant Kshs. 2,240,000.00 plus costs and interest, pending an intended appeal to the Court of Appeal. The Applicant argued that it had an arguable appeal - contending that salary for the unexpired term of the contract ought not to have been awarded - that the appeal would be rendered nugatory because the Respondent had no known assets, that the application was brought without undue delay (delay being attributed to the time taken to obtain certified proceedings and decree), and that it was ready to deposit the decretal sum in a joint interest-earning account. The Respondent opposed, submitting that the application was an afterthought filed six months after judgment without explanation of delay, that substantial loss had not been demonstrated, and that all conditions for stay must be satisfied simultaneously. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court held that the application was inordinately late but, considering the offer of security, the filed notice of appeal and the absence of prejudice to the Respondent beyond delay, exercised its discretion to grant stay on condition that the entire decretal sum be deposited in a joint interest-earning account in the names of both counsel within 30 days, failing which execution would proceed. Costs of the application were to be in the cause.

Key legal issues

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01

Whether the conditions in Order 42 rule 6(2) of the Civil Procedure Rules for stay of execution were satisfied

Holding

The court found the application inordinately delayed (filed almost 6 months after judgment) but, weighing the offer of security and the notice of appeal already filed, exercised its discretion to grant stay on conditions

Reasoning

The court applied the three conditions in Order 42 rule 6(2): substantial loss, absence of unreasonable delay, and security. It found the delay of almost six months inordinate. However, because the Applicant offered to deposit the decretal sum in a joint interest earning account and had already filed a notice of appeal, the court found the Respondent would not be prejudiced save for some delay, and granted conditional stay.

p. 3
02

Whether the delay of almost six months in filing the application was excusable

Holding

The court held that the Applicant was inordinately late in filing the application

Reasoning

Judgment was delivered on 27/5/2019 in the presence of both parties, yet the application was filed on 13/11/2019. The court noted the Applicant's explanation regarding the time taken to obtain certified proceedings (26/9/2019) and the decree (29/10/2019), but still characterised the delay as inordinate. The delay did not, however, defeat the application once security was offered.

p. 3

Legal principles established

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  • Stay of execution may be granted conditionally upon deposit of the decretal sum as security, with execution to follow in default of compliance

Court orders

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  1. 1.Stay of execution of the judgment of 27/5/2019 granted on condition that the Respondent/Applicant deposits the entire decretal sum of Kshs. 2,240,000.00 in a joint interest earning account held in the joint names of the Counsels on record within 30 days
  2. 2.In default of the deposit, execution to proceed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1) and 6(2)

Cases cited (6)

  • Gabriel Kariuki Chomba vs. Top Image Limited
    [2014] eKLR
  • Robert Kennedy Moi vs. Attorney General & Another
    [2014] eKLR
  • National Industrial Credit Bank Limited vs. Aquinas Francis Wasike & Another (UR)
  • Amal Hauliers Limited vs. Abdulnasir Abukar Hassan
    [2017] eKLR
  • Beatrice Mghamba Onyonka vs. Samuel Onsarigo Ooga
    [2019] eKLR
  • Dennis Kipngetich Koech vs. MKPPA Kenya Limited
    [2018] eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to stay execution of its own decree, exercised under Order 42 rule 6(2) 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, "Simon Titus Yandi v Directline Assurance Co Ltd [2020] KEELRC 1277 (KLR)", Case Analysis (2020). Cause No 1970 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1277/eng@2020-03-10

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