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ELRCAllowedNot stated in the judgment· [2021] KEELRC 314 (KLR)

Janeth Chepkemoi Machira & another v Laikipia University [2021] KEELRC 314 (KLR)

Employment and Labour Relations Court
29 November 2021
DNDAVID NDERITU
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court halted enforcement of a judgment money award, but only because the employer agreed to deposit the full amount in a joint bank account.

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 Nakuru (David Nderitu, J) delivered virtually on 29th November 2021 on a Notice of Motion dated 6th August 2021 seeking stay of execution of a judgment of Lady Justice Wasilwa dated 27th July 2021, in which the 1st Claimant was awarded Kshs.696,690/= and the 2nd Claimant Kshs.994,620/= plus costs. The application was brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, supported by the affidavit of Mugo Muriithi, with a Notice of Appeal and draft Memorandum of Appeal annexed, and opposed by a replying affidavit of the 1st Claimant. Interim ex-parte stay had been granted by Lady Justice M. Onyango on 10th August 2021 and extended pending inter-partes hearing. The court framed a single issue: whether the Applicant was entitled to stay. Applying the three conditions in Order 42 rule 6, it found substantial loss established because there was a high chance the appeal would be rendered nugatory; the Claimants, having failed to rebut by evidence the allegation that they were unemployed and unable to refund the decretal sum, left the evidential burden unrebutted. The application was filed within days of judgment, satisfying the delay limb. On security, the court rejected the Applicant's claim to exemption as a public institution, holding that only the Government of the Republic is exempt under Order 42 Rule 8. The court found the draft appeal raised triable issues, allowed the motion, and granted stay of execution pending appeal on condition that the entire decretal sum be deposited in an interest-earning account in the joint names of the parties' advocates within 30 days, failing which the stay lapses. Costs of the application were made to abide the outcome of the appeal.

Key legal issues

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01

Substantial loss

Holding

The Applicant satisfied the substantial loss condition because there is a high chance the appeal would be rendered nugatory if execution proceeds and the Claimants' ability to refund the decretal sum was not rebutted by evidence.

Reasoning

The Applicant alleged the Claimants were unemployed and unlikely to refund the decretal sum. The evidential burden shifted to the Claimants, who did not dispute the allegation by evidence but merely demanded disclosure by the Applicant. The court, citing Odunga J in Victory Construction v BM, held that ability to refund is a relevant factor under substantial loss and the nugatory-appeal limb, and found the condition met.

p. 3
02

Unreasonable delay

Holding

The application was filed without unreasonable delay, satisfying the second condition.

Reasoning

Judgment was delivered on 27th July 2021 and the application was filed on 9th August 2021, within the proverbial 14 days recognised in legal practice, so the delay limb of Order 42 rule 6(2) was satisfied.

p. 3
03

Security

Holding

Stay to be granted on condition that the Applicant deposits the entire decretal sum in an interest-earning joint account in the names of both parties' advocates within 30 days.

Reasoning

The court balanced the interests of the decree-holders and the judgment-debtor: the Claimants are lawfully entitled to the fruits of the judgment, while the Applicant needs assurance of restitution if the appeal succeeds. The Applicant undertook to furnish security; its submission that a public institution may be exempt was rejected since only the Government is exempt under Order 42 Rule 8. Security must be adequate, not punitive.

p. 4
04

Merits of the intended appeal

Holding

The draft memorandum of appeal raises triable issues, justifying stay as a safety-net without speculating on the appeal's success.

Reasoning

The court perused the draft memorandum of appeal and, without delving into the merits, found it raises triable issues. This pointed towards it being fair and just to allow the Applicant to argue the appeal with a safety-net of a conditional stay of execution.

p. 3

Legal principles established

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  • Filing or pendency of an appeal does not operate as a stay of execution; an order for stay must be obtained from the court appealed from or the appellate court.
  • Where an Applicant shows reasonable grounds that a Respondent cannot refund the decretal sum, the evidential burden shifts to the Respondent to demonstrate ability to refund.
  • Under Order 42 Rule 8 of the Civil Procedure Rules, only the Government of the Republic is exempted from providing security for due performance of a decree.
  • Security required for a stay should not be punitive but must be adequate for due performance of the decree.

Court orders

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  1. 1.The Notice of Motion dated 6th August 2021 is allowed on conditions set out
  2. 2.Stay of execution granted pending the hearing and determination of the appeal
  3. 3.The entire decretal sum to be deposited by the Applicant in an interest-earning account in a reputable bank opened in the joint names of the Advocates for the parties
  4. 4.Compliance within 30 days of the ruling, failing which the stay automatically lapses
  5. 5.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 42 rule 8
  • Civil Procedure RulesOrder 51 rule 1
  • Employment and Labour Relations Court ActSection 3(1) and (2)
  • Court of Appeal RulesRule 5(b)

Cases cited (9)

  • Butt vs Rent Restriction Tribunal
    (1979)
  • Century Oil Trading Company LTD vs Kenya Shell Limited
  • ANM vs VN, Civil Suit No.22 of 2015(OS)
  • James Wangilwa and Another vs Agnes Naliaka Chesoto
    Bungoma HC Miscellaneous Application No. 42 of 2011
  • Winfred Nyawira Maina vs Peterson Onyiego Gichana
    (2015) eKLR
  • Victory Construction vs BM
    (2019) eKLR
  • Absalom Dova vs Tarbo Transporters
    (2013) eKLR
  • Mwaura Karuga t/a Limit Enterprises vs Kenya Bus Services LTD and 4 Others
    (2015) eKLR
  • GianFranco Marenthi and Another vs Africa Merchant Assurance Company Ltd
    (2019) eKLR
On appeal from
Employment and Labour Relations Court at Nakuru
Judgment delivered 27th July 2021 (Lady Justice Wasilwa)
Jurisdiction invoked
Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A of the Civil Procedure Act (Cap 21); Section 3(1) and (2) of the Employment and Labour Relations Court Act No. 20 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Janeth Chepkemoi Machira & another v Laikipia University [2021] KEELRC 314 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/314/eng@2021-11-29

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