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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 797 (KLR)

Florence Kavosa Wanyanga v Kenya National Examination Council [2021] KEELRC 797 (KLR)

Employment and Labour Relations Court
7 October 2021
MMM. Mbaru
642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer seeking to pause paying a judgment must pay half now and secure the rest, or the stay lapses.

What this practically means

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Executive summary

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The respondent, Kenya National Examination Council, applied by notice of motion dated 1st March 2021 for stay of execution of the judgment and decree delivered on 26th January 2021, by which the court had found that the claimant's retirement from her employment on 20th April 2015 was unfair and had awarded her compensation and costs. The application, supported by the affidavit of Befley Bisem, corporation secretary and deputy director legal services, was premised on a filed Notice of Appeal and an offer of a bank guarantee for the decretal sum as security. The parties agreed on a stay in principle but disagreed on the nature of the security: the respondent, as a government agency, wished to furnish only a bank guarantee, while the claimant sought payment of half the judgment amount with the balance secured by bank guarantee, noting the matter had been pending since 2016, that she had retired, that costs were untaxed and no decree issued, and that the respondent had not exhibited draft grounds of appeal. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principle that a successful party should not be deprived of the fruits of judgment, citing the authorities relied upon. Observing that the respondent had not indicated whether the appeal targeted the whole or part of the judgment and had attached no draft memorandum, the court granted a conditional stay: the respondent to release half the judgment sum to the claimant and secure the other half by bank guarantee from a reputable financial institution within 45 days, failing which the stay conditions would lapse. Costs were awarded to the claimant.

Key legal issues

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01

Conditions for stay of execution pending intended appeal

Holding

Stay was agreed between the parties but the security conditions were contested; the court granted a conditional stay requiring half the judgment sum to be released and the balance secured by bank guarantee within 45 days.

Reasoning

The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principle that a successful litigant should not be deprived of the fruits of judgment. Because the respondent did not attach a draft memorandum or specify whether the appeal was against the whole or part of the judgment, the court had no material to assess the appeal's prospects, and so balanced the respondent's interest in pursuing the appeal with the claimant's need to enjoy the award by ordering partial payment plus security.

p. 1

Legal principles established

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  • In considering an application for stay of execution, the court does not make orders that would deprive a successful party of the fruits of her judgment.

Court orders

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  1. 1.Stay of execution granted on condition that the respondent release half the judgment sum to the claimant
  2. 2.The other half of the judgment sum shall be secured by a bank guarantee from a reputable financial institution pending the hearing of the intended appeal
  3. 3.The release and security shall be done within 45 days, failing which the condition for stay shall lapse
  4. 4.Costs to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • George Oraro v Kenya Television Network
    Nairobi High Court Civil Case No. 151 of 1992
  • F. K. Kiongo v VPN Mukubwa & another
    Nairobi Civil Application No. 63 of 1988
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Florence Kavosa Wanyanga v Kenya National Examination Council [2021] KEELRC 797 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/797/eng@2021-10-07

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