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ELRCDismissedCause No 1614 of 2015· [2020] KEELRC 1643 (KLR)

Peter Mbuthia Gitau v Kenya Revenue Authority [2020] KEELRC 1643 (KLR)

Employment and Labour Relations Court
13 February 2020
3,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to pause a KShs 1.4 million judgment against KRA, because KRA delayed nearly three months and proved no real hardship.

What this practically means

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Executive summary

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This was an application for stay of execution filed by the Kenya Revenue Authority, the respondent in an employment cause in which Hon. Lady Justice Linnet Ndolo, as read by Hon. Lady Justice Maureen Onyango, delivered judgment on 26th July 2019 awarding the claimant compensation, including twelve months' salary for delay in handling his suspension. The applicant, supported by the affidavit of Wilson Gaconi, sought stay of execution pending an intended appeal, relying on a notice of appeal filed on 7th August 2019. The claimant opposed, alleging inordinate delay, absence of security, and the applicant's failure to demonstrate substantial loss, and exhibited assets worth over Kshs.7 million demonstrating ability to refund the decretal sum of Kshs.1,416,000. Applying Order 42 Rule 6 of the Civil Procedure Rules and the Court of Appeal authorities, the court held that no substantial loss was proved since the claimant had demonstrated ability to refund, and that the applicant's delay of almost three months - explained only by the need to gather instructions as a state corporation - was inordinate and unexplained, the KRA being an autonomous body that must submit to the rigours of litigation. The court found the notice of appeal properly filed within the statutory 14 days and left defects therein to the appellate court. The application for stay was dismissed with costs on 13th February 2020.

Key legal issues

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01

Substantial loss

Holding

No substantial loss proved; the claimant demonstrated he is able to refund the decretal sum of Kshs.1,416,000 should the appeal succeed

Reasoning

The court took judicial notice that the applicant is a public body charged with revenue collection and could easily pay the decretal sum. Equally, the claimant listed assets - three motor vehicles and three parcels of land at Gatamaiyu/Kagaa - totalling over Kshs.7 million, sufficient to cover the decree. Where the respondent can refund, an appeal against a monetary decree cannot be rendered nugatory.

p. 3
02

Inordinate delay

Holding

There was inordinate and unexplained delay of almost three months from delivery of judgment to filing of the stay application

Reasoning

Judgment was delivered on 26th July 2019 with a 30-day oral stay which lapsed on 25th August 2019. The application was not filed until 15th October 2019. The explanation - that the applicant, a state corporation, needed to gather instructions - was rejected, courts having repeatedly chided the KRA for relying on that excuse, it being an autonomous body that must bear the rigours of litigation.

p. 3
03

Validity of the notice of appeal

Holding

The notice of appeal was valid, having been received in the registry on 7th August 2019, within 14 days of judgment, and signed and served on 13th August 2019

Reasoning

The record showed the notice was lodged within the statutory 14 days and the delay in signing lay with the registry, not the applicant. Any defect relating to the prayers in the notice was a matter for the appellate court, and the claimant had not moved the court under the Civil Procedure Rules or Rule 84 of the Court of Appeal Rules to strike it out.

p. 4

Legal principles established

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  • Where a money decree is involved, substantial loss lies in the inability of the respondent to refund the decretal sum should the appeal succeed, and the legal burden of proving that inability lies on the applicant and does not shift
  • The Kenya Revenue Authority is an autonomous, corporate statutory body, not an organ of government, and must submit itself to the rigours of litigation without operating under the shadow of the Government
  • An applicant for stay must do more than assert substantial loss; it must show the damages it would suffer if stay is not granted, since granting stay denies a successful litigant the fruits of judgment

Court orders

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  1. 1.The application dated 14th October 2019 and filed on 15th October 2019 for stay of execution is dismissed
  2. 2.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84
  • Government Proceedings ActNot specified

Cases cited (8)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 Others
    (2014) eKLR
  • Nelson Andai Havi v Law Society of Kenya and 3 Others
    (2018) eKLR
  • Winfred Nyamira Maina v Peterson Onyiego Githana
    HCCC No. 576 of 2012
  • Kenya Shell Limited v Kiburu
    (1986) LKR 410
  • Kenya Revenue Authority v Habimana Sued Hemed & Another
    Civil Appeal No. 34 of 2008
  • Gurdoba Enterprises Limited vs Kenya Revenue Authority
    Civil Case No. 676 of 1998
  • Menginya Salim Murgani v Kenya Revenue Authority
    HCCC No. 1139 of 2002
  • Philip Keipto Chemwolo & Another v Augustine Kubende
    (1986) eKLR
Jurisdiction invoked
Inherent jurisdiction to grant stay under Order 42 Rule 6 of the Civil Procedure Rules, the court which delivered the decree being moved pending an intended 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, "Peter Mbuthia Gitau v Kenya Revenue Authority [2020] KEELRC 1643 (KLR)", Case Analysis (2020). Cause No 1614 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1643/eng@2020-02-13

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