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ELRCPartially AllowedCause No 66 of 2002· [2021] KEELRC 318 (KLR)

Kenya Union of Commercial Food & allied Workers Union v Gititu Coffee Growers Cooperative Ltd [2021] KEELRC 318 (KLR)

Employment and Labour Relations Court
2 December 2021
1,176 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a company to pause payment of an 18-year-old award only if it first deposits half the amount, or execution resumes immediately.

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 (Nairobi) by Linnet J on the Respondent's Notice of Motion dated 29th September 2021 in a long-running employment cause. The Respondent, Kenya Farmers Association (KFFC Ltd), sought stay of execution of a judgment and decree of Kshs. 13,894,075.55 delivered in 2003, pending an intended appeal against a ruling of Onyango J of 6th August 2021 refusing its objection to a Notice to Show Cause. It contended it had paid Kshs. 10,644,749.70 directly to individual Grievants so that further payment would amount to double compensation, that execution was statute-barred under Section 4(4) of the Limitation of Actions Act, and that the balance was owed by a different entity, Nyakiri Farmers Co-operative Society. It also sought setting aside of orders of 21st September 2021 made at a virtual session its advocates failed to attend due to connectivity problems. The Claimant, through an affidavit of Grievant Joseph Kabera Cimbi, opposed the application as convoluting issues and resting on unverified averments. The court held it could not entertain arguments on the merits of a coordinate judge's ruling, which belonged to the Court of Appeal, and confined itself to the stay question. Balancing the Claimant's right to enjoy the fruits of judgment against the Respondent's right of appeal, and noting the concession that some payment had been made, the court granted a conditional stay: the Respondent to deposit 50% of the decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses automatically and execution proceeds. The Respondent was to pay the costs of the application.

Key legal issues

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01

Conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

A conditional stay was granted on terms: deposit of 50% of the decretal sum as security within 30 days, failing which the stay lapses automatically

Reasoning

The court applied Order 42 Rule 6 and the Butt v Rent Restriction Tribunal considerations, noting the age of the matter (2003 judgment), the Respondent's claim of substantial payment, and the Grievants' concession that some money was paid. It balanced the Claimant's right to enjoy the fruits of judgment against the Respondent's right of appeal and crafted a conditional stay protecting both interests.

p. 2
02

Whether the court could revisit the merits of Onyango J's ruling of 6th August 2021

Holding

It could not; the arguments are for the Court of Appeal

Reasoning

The Respondent had argued the merits of the ruling refusing its objection to the Notice to Show Cause, including limitation under Section 4(4) of the Limitation of Actions Act and alleged double compensation. The court held it was of coordinate jurisdiction with Onyango J and could not entertain those arguments; they ought to be pursued on appeal.

p. 2
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Whether the 21st September 2021 proceedings should be set aside for the Respondent not being heard

Holding

No express setting aside order made; only the conditional stay was granted

Reasoning

The Respondent complained its connection dropped during the virtual session and that the proceedings ignored its replying affidavit. The court did not grant a de novo hearing but instead accommodated the Respondent through a conditional stay pending appeal, requiring security of 50% of the decretal sum.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security as the court orders
  • In stay applications the court balances the decree-holder's right to enjoy the fruits of judgment against the judgment-debtor's right of appeal
  • A court of coordinate jurisdiction cannot entertain arguments on the merits of another judge's ruling

Court orders

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  1. 1.Stay of execution granted conditionally: the Respondent to deposit 50% of the decretal sum in an interest-earning account in the joint names of the parties' Advocates within thirty (30) days
  2. 2.Failure to comply with the deposit condition will cause an automatic lapse of the stay and execution will proceed without further orders
  3. 3.The Respondent to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Limitation of Actions ActSection 4(4)

Cases cited (1)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
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, "Kenya Union of Commercial Food & allied Workers Union v Gititu Coffee Growers Cooperative Ltd [2021] KEELRC 318 (KLR)", Case Analysis (2021). Cause No 66 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/318/eng@2021-12-02

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