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ELRCAllowedNairobi ELRC No. 2250 of 2016· [2020] KEELRC 1296 (KLR)

Juliet Akinyi Dima v Human Needs Project (Kenya) [2020] KEELRC 1296 (KLR)

Employment and Labour Relations Court
12 March 2020
HWHellen Wasilwa
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer won extra time before paying a wrongful termination award, but only by agreeing to deposit the full amount in a court-supervised joint account.

What this practically means

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Executive summary

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The Applicant, Human Needs Project (Kenya), an NGO, filed a Notice of Motion on 1 November 2019 seeking a stay of execution of the judgment of Hon. Lady Justice Hellen Wasilwa delivered on 7 October 2019 in Nairobi ELRC No. 2250 of 2016, in which the Respondent, Juliet Akinyi Dima, was awarded USD 32,500 in damages plus costs for unlawful termination. The trial court had granted a 30-day stay expiring on 7 November 2019. The Applicant, having filed a Notice of Appeal, argued it would suffer substantial loss as an NGO reliant on donor funding with no means of recovering the decretal sum if the appeal succeeded, and relied on authorities including Butt v Rent Restriction Tribunal and Superior Homes (Kenya) Limited v Musango Kithome on the evidential burden regarding refundability. The Respondent opposed, contending the threshold under Order 42 rule 6 was not met, that a successful litigant should not be deprived of the fruits of judgment, and that she, an advocate of the High Court, could repay any sums if the appeal succeeded. She proposed conditional deposit of the decretal sum. The court, applying Order 42 rule 6(2), found that the Applicant had filed a Notice of Appeal and was willing to deposit security, satisfying the statutory conditions. It allowed the stay of execution 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 would proceed. Judgment delivered on 12 March 2020.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

Yes; the court found the application merited because the Applicant had filed a Notice of Appeal and was willing to deposit security for the decree.

Reasoning

The court examined the averments and submissions of both parties and noted that the Applicant had filed a Notice of Appeal and offered to deposit the decretal sum in a joint interest earning account. It found these facts satisfied the requirements of substantial loss, absence of unreasonable delay and provision of security as stipulated in Order 42 rule 6(2), and accordingly allowed the stay on conditions.

p. 3

Legal principles established

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  • No order for stay of execution shall be made unless the court is satisfied that substantial loss may result unless the order is made, the application has been made without unreasonable delay, and security for due performance of the decree has been given.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 7th October 2019 and the subsequent decree pending the hearing and determination of the intended appeal, on condition that the entire decretal sum is deposited 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 proceed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (5)

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Superior Homes (Kenya) Limited v Musango Kithome
    [2018] eKLR
  • Socfinaf Ltd (Ruera Estate) v Abisagi Igoki
    [2018] eKLR
  • Joseph Gachie t/a Joska Metal Works v Simon Ndeti Muema
    [2012] eKLR
  • Samuel Kimutai Koror (suing as personal and legal representative of estate of Chelangat Silevia) v Nyamchwa Adventist Secondary School & Nyanchwa Adventist College
    [2017] eKLR
On appeal from
Employment and Labour Relations Court at Nairobi
Nairobi ELRC No. 2250 of 2016
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Juliet Akinyi Dima v Human Needs Project (Kenya) [2020] KEELRC 1296 (KLR)", Case Analysis (2020). Nairobi ELRC No. 2250 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1296/eng@2020-03-12

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