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ELRCPartially AllowedNot stated in the judgment (application dated 13th April, 2021)· [2021] KEELRC 1130 (KLR)

Stephen Munene Waititu & another v Kenya Tea Packers Limited & another [2021] KEELRC 1130 (KLR)

Employment and Labour Relations Court
29 July 2021
HWHellen Wasilwa
1,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court stopped execution of a judgment debt, but only because the losing party agreed to deposit the full decretal amount within 30 days.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Hellen Wasilwa, J, delivered virtually on 29th July 2021, determines the respondents/applicants' application dated 13th April 2021 seeking stay of execution of the decree and order issued on 3rd February 2021 and the certificate of costs issued on 29th January 2021, pending the hearing and determination of their intended appeal and of the application itself. The application was brought under Order 40 and Order 42 Rule 6 of the Civil Procedure Rules and sections 1A, 1B, 3A, 63(e), 99 and 100 of the Civil Procedure Act. The applicants contended that judgment was delivered on 2nd June 2020, that they filed a notice of appeal but delayed filing the memorandum and record of appeal due to COVID-19 restrictions, and that the claimant had proclaimed several vehicles, some allegedly not belonging to the 1st respondent, worth over Kshs 30 million. The claimant opposed, arguing the application was an afterthought, that no valid notice of appeal had been lodged as it lacked the Deputy Registrar's endorsement under Rule 75 of the Court of Appeal Rules, that no record of appeal existed, and that no substantial loss or security had been demonstrated, relying among others on Kenya Shell v Kabiru and Mistry Premji Ganji. The court found that the applicants had actually lodged an appeal at the Court of Appeal, and held that this justified a stay to preserve the subject matter and avoid rendering the appeal nugatory. It conditionally allowed the stay, requiring the applicants to deposit the entire decretal sum in an interest-earning account in the joint names of counsel on record within 30 days, failing which execution to proceed. Costs were to be in the cause.

Key legal issues

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01

Stay of execution pending appeal under Order 42 Rule 6

Holding

Stay granted conditionally upon deposit of the decretal sum in an interest-earning account in joint names of counsel within 30 days

Reasoning

The court found that an appeal had actually been lodged at the Court of Appeal. Granting stay preserves the subject matter and prevents the appeal from becoming an academic exercise. The applicants had offered to abide by conditions and furnish security, and the court exercised its discretion in favour of conditional stay rather than an unconditional order.

p. 3
02

Effect of pendency of an appeal on execution

Holding

Execution should be stayed to preserve the matter where an appeal is lodged

Reasoning

The court reasoned that the existence of the lodged appeal was itself a deterrent against refusing stay, since allowing execution would render the appeal nugatory. The stay was, however, made conditional on security in the form of a deposit of the decretal sum, with execution to proceed in default.

p. 3

Legal principles established

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  • An appeal already lodged at the Court of Appeal justifies preservation of the subject matter by conditional stay so the appeal is not rendered nugatory.

Court orders

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  1. 1.Stay of execution of the decree and order issued on 3rd February, 2021 and the certificate of costs issued on 29th January, 2021 pending appeal, granted on condition that the applicants deposit the entire decretal sum in an interest-earning account in the joint names of counsel on record within 30 days
  2. 2.In default of such deposit, execution to proceed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1(a)(b), 2(2), 3(1), 3(3), 4(1)
  • Civil Procedure RulesOrder 42 Rule 6(1), 7(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 99, 100
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 77

Cases cited (5)

  • Focin Motorcycle Co. Ltd –v- Ann Wambui Wangui & Another
    [2018] eKLR
  • Butt –v- Rent Restriction Tribunal
    [1979] eKLR
  • Mistry Premji Ganji (Investments) Limited –v- Kenya National Highways Authority
    [2019] eKLR
  • Kenya Shell Limited –v- Kabiru & Another
    [1986] KLR 410
  • Arun C Sharma –v- Ashana Raikundalia t/a Rairundlia and Co Advocates
    [2014] eKLR
On appeal from
Not stated (trial court/ELRC decision subject of intended appeal)
Not stated
Jurisdiction invoked
Order 40 Rules 1, 2, 3, 4; Order 42 Rules 6(1) and 7(1) of the Civil Procedure Rules; sections 1A, 1B, 3A, 63(e), 99 and 100 of the Civil Procedure Act

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, "Stephen Munene Waititu & another v Kenya Tea Packers Limited & another [2021] KEELRC 1130 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 13th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1130/eng@2021-07-29

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