Linda Ndenengo Mwakugu v Open Society Institute Company Limited [2021] KEELRC 1285 (KLR)
The bottom line
#Kenya's Employment Court paused enforcement of a KES 954,000 award pending appeal, but only if the employer deposits the money in a joint account within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay was filed without unreasonable delay
There was no inordinate or unreasonable delay; the four-month interval was explained by good-faith settlement negotiations that broke down on 3 November 2020, and the application was filed 14 days later.
The court noted both parties had filed notices of appeal and engaged in negotiations for an amicable resolution and withdrawal of their appeals. The Applicant could not be blamed for the delay in the special circumstances of the case; the application came only 14 days after the negotiations broke down. Reliance was placed on Amal Hauliers v Abdulnasir Abukar Hassan where a four-month delay was held not unreasonable.
Whether the Applicant would suffer substantial loss
Substantial loss did not arise because the Claimant/Decree Holder had herself appealed and thus could not execute the decree until the appeal was determined.
The court reasoned that the Claimant, having also filed a Notice of Appeal against the judgment, would not expect to execute the decree partially and then execute again should her appeal succeed. The cross-appeal preserved the status quo and negated the risk of irrecoverable payment that substantial loss is designed to guard against.
What security for the due performance of the decree should be ordered
The Applicant's offer to deposit the decretal sums into an interest-earning joint account held by the parties' advocates was accepted as security; the Claimant's proposal for partial payment was rejected.
The court considered the Applicant's willingness to deposit such sums as the court deemed fit into a joint interest-earning account. In the interest of justice, and given the pendency of the Claimant's own appeal, the court required deposit of the full decretal sums within 30 days and filing of the appeal within 60 days, failing which execution would lie.
Legal principles established
#- An applicant for stay who files the application shortly after good-faith settlement negotiations collapse is not guilty of inordinate or unexplained delay
- Where the decree holder has herself filed an appeal, substantial loss does not arise because she cannot execute the decree until the appeal is determined
Court orders
#- 1.Stay of execution of the judgment and decree delivered on 3 July 2020 granted pending appeal
- 2.The decretal sums be deposited within 30 days from the date of delivery of the ruling into an interest earning account jointly held by the parties' advocates as security
- 3.The intended Appeal be filed within 60 days from the date of delivery of the ruling
- 4.Failure by the Respondent/Applicant to meet conditions (1) and (2), the Claimant/Decree Holder shall be at liberty to execute
- 5.Costs shall be in the appeal
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules; Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linda Ndenengo Mwakugu v Open Society Institute Company Limited [2021] KEELRC 1285 (KLR)", Case Analysis (2021). Not stated in the excerpt (application dated 17th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1285/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.