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ELRCPartially Allowed· [2020] KEELRC 1547 (KLR)

Joseph Olando Oloo v Unga Limited [2020] KEELRC 1547 (KLR)

Employment and Labour Relations Court
21 February 2020
MOMaureen Onyango
1,574 words in judgment
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The bottom line

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A Kenyan employment court granted a conditional stay of a Kshs.3.2 million award, releasing Kshs.1.5 million to the worker and freezing the balance pending appeal.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) on the Respondent's notice of motion dated 4th July 2019 seeking stay of execution of the decree issued on 12th March 2019, including a stay of the intended taxation of the Claimant's Party and Party Bill of Costs, pending appeal to the Court of Appeal against the judgment of Nduma Nderi J of 10th August 2018, in which the Claimant was awarded Kshs.3,208,275.25 plus interest. The Applicant argued the sum was substantial and irrecoverable if paid out, that it had been unable to obtain certified copies of the decree and proceedings, and that it was ready to provide security. The Claimant opposed, citing inordinate delay of nearly a year after judgment and failure to demonstrate a meritorious appeal or his inability to refund. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court found substantial loss demonstrated by the extracted decree and pending taxation, held the application was made without unreasonable delay since it could not have been brought before extraction of the decree, and accepted the Applicant's willingness to provide security. Noting that the intended appeal targeted only the quantum and interest and not the finding that the redundancy was unfair, the court granted a conditional stay: Kshs.1.5 million was to be released to the Claimant and the balance deposited into an interest-earning account in the joint names of the Claimant and the Respondent's counsel within 30 days. The Respondent was ordered to pay the costs of the application in any event.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The conditions were satisfied: substantial loss was demonstrated by the pending taxation of the Party and Party Bill of Costs and the existence of an extracted decree capable of execution; the application was made without unreasonable delay since the decree was only issued on 12th March 2019 and stay could not be sought before extraction of the decree; the Applicant undertook to provide security by depositing the balance of the decretal sum.

Reasoning

The court applied Order 42 Rule 6(2), finding the extracted decree and pending taxation constituted a real risk of execution and substantial loss. It held the application was timely because it depended on issuance of the decree on 12th March 2019. The Applicant's willingness to deposit funds in a joint interest-earning account constituted adequate security. The court also noted the intended appeal targeted only the quantum of the award, not the finding that the redundancy was unfair, and tailored its orders accordingly.

p. 2

Legal principles established

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  • No order for stay of execution shall be made unless substantial loss may result to the applicant, the application is made without unreasonable delay, and security for due performance of the decree is given
  • An application for stay cannot be made prematurely before extraction of the decree; the delay is measured from issuance of the decree

Court orders

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  1. 1.An order for stay of execution of the Decree issued on 12th March 2019 (together with any and/or all subsequent proceedings in the Cause, including the intended taxation of the Claimant's Party and Party Bill of Costs) pending the hearing and determination of the intended Appeal
  2. 2.Out of the decretal sum, a sum of Kshs.1.5 million be released to the Claimant and the balance of the decretal sum be deposited into an interest-earning account in the names of the Claimant and counsel for the Respondent/Applicant within 30 days from the date of the Ruling
  3. 3.The Respondent shall pay the costs of the application in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (8)

  • Hellen Wasaka vs. Middle East Bank Limited
    [2019]
  • Alfred Nathan Mvuko vs. Hakika Transport Services Limited
    [2019] eKLR
  • Anthony Wachira Wairimu & Another (Suing as the Legal Representatives and Administrators of the Estate of Joseph Kurl Mwangi-Deceased) vs. Zhongmei Engineering (K) Group Limited
    [2019]
  • Kennedy Omondi vs. Charles New Nyamote
    [2018] eKLR
  • Justin Mutunga David vs. China Road & Bridge Corporation (K) Limited
    [2019] eKLR
  • Hassan Guyo Wakalo vs. Straman EA Limited
    [2013] eKLR
  • Joseph Gachie T/A Joska Metal Works vs. Simon Ndeti Muema
    [2012] eKLR
  • Equity Bank Limited vs. Taiga Adams Company Limited
    [2006] eKLR
On appeal from
Employment and Labour Relations Court (judgment by Nduma Nderi J, delivered 10th August 2018; Notice of Appeal filed 23rd August 2018 by Onyango J.)
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (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, "Joseph Olando Oloo v Unga Limited [2020] KEELRC 1547 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1547/eng@2020-02-21

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