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ELRCAllowedMiscellaneous application arising from Employment and Labour Relations Court Appeal No. E.139/2021· [2021] KEELRC 40 (KLR)

C. Dorman Limited v Aggrey Amulakho Mukhwana [2021] KEELRC 40 (KLR)

High Court of Kenya (Employment and Labour Relations Court appeal side), Nairobi
7 December 2021
AMAnna Ngibuini Mwaure
1,132 words in judgment
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The bottom line

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A Kenyan court paused enforcement of a Kshs.1.5 million employment judgment because the employer appealed quickly and agreed to deposit the money with the court.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 24 November 2021 seeking stay of execution of a judgment delivered on 29 October 2021 by a trial magistrate awarding the Claimant Kshs.1,541,716.50 plus costs, against which the applicant has lodged an appeal (Employment and Labour Relations Court Appeal No. E.139/2021). The applicant applied for stay in the lower court but could not prosecute it because the lower court file could not be traced, prompting this application. The Respondent, acting in person, opposed, contending the missing-file claim was an excuse to delay, and asked alternatively for deposit of the decretal sum as security. Justice Anna Ngibuini Mwaure applied Order 42 rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal and RWW v EKW. She found no undue delay, noted the applicant's willingness to provide security and the respondent's agreement to a deposit, and granted stay of execution pending the appeal, together with an order directing the Registrar to facilitate production of the lower court file for speedy disposal of the appeal. The applicant was ordered to deposit the decretal sum of Kshs.1,541,716.50 in court within 30 days. Costs of the application were to be in the cause. The ruling was delivered virtually under COVID-19 directives, citing Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal

Holding

Stay granted: the application was made without delay and the applicant offered security by way of deposit of the decretal sum, which the respondent did not oppose.

Reasoning

Judgment was delivered on 29 October 2021; the applicant filed a stay application in the lower court on 9 November 2021 and, unable to trace the lower court file, moved the High Court on 24 November 2021. The court found no delay. The applicant expressed readiness to abide by security conditions and the respondent agreed, so the court exercised its discretion under Order 42 rule 6 to grant stay conditioned on a deposit.

p. 2

Legal principles established

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  • An appeal does not operate as a stay of execution; stay pending appeal requires substantial loss, absence of undue delay, and security for due performance
  • The purpose of stay of execution pending appeal is to preserve the subject matter so a successful appeal is not rendered nugatory

Court orders

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  1. 1.Stay of execution granted pending hearing and determination of Employment and Labour Relations Court Appeal number 139 of 2021
  2. 2.An order issued to the court Registrar to facilitate production of the lower court file before the High Court for speedy disposal of the appeal
  3. 3.The applicant to deposit the decretal amount of Kshs.1,541,716.50 with the court within 30 days of the Ruling
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • BUTT VS THE RENT RESTRICTION TRIBUNAL
    (1979)
  • RWW VS EKW
    (2019) eKLR
On appeal from
Employment and Labour Relations Court (trial magistrate)
Employment and Labour Relations Court Appeal number E.139/2021
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Article 159(2)(d) and Article 48 of the Constitution

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, "C. Dorman Limited v Aggrey Amulakho Mukhwana [2021] KEELRC 40 (KLR)", Case Analysis (2021). Miscellaneous application arising from Employment and Labour Relations Court Appeal No. E.139/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/40/eng@2021-12-07

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