Paul Kipsang Kosgei v National Industrial Training Authority & another; Cabinet Secretary, Ministry of Labour & Social Services (Interested Party) [2021] KEELRC 1286 (KLR)
The bottom line
#Kenya's employment court paused a Kshs.27.6 million judgment against NITA pending appeal, but only on condition that Kshs.5 million be paid to the winner within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the stay application was filed without unreasonable delay
The application filed on 4th September 2020 following judgment of 7th August 2020 was timeous.
The Respondent alleged the motion was filed 54-56 days after judgment, constituting inordinate delay. The court found the application was dated 3rd September 2020 and filed on 4th September 2020, barely a month after judgment, and was considered ex parte on 4th September 2020. The Applicants were therefore not guilty of delay.
Whether the Applicant demonstrated substantial loss
The Applicant failed to demonstrate substantial loss because the Petitioner, who owns valuable land, is not a man of straw and any decretal sum paid would be recoverable if the appeal succeeds.
Substantial loss on a money decree lies in the inability of the decree-holder to refund. The Applicant relied on the Petitioner's alleged unknown means, but the court found the Petitioner owned substantial land as evidenced by the title deed produced, so the decretal sum would be recoverable and the appeal would not be rendered nugatory.
Whether the Applicant is exempt from depositing security under Order 42 Rule 8 as a State Corporation
Order 42 Rule 8 does not exempt a State Corporation which is a body corporate distinct from Government; however, the court in its discretion conditioned the stay on a part-payment rather than a deposit of security.
The 1st Respondent is established under the Industrial Training Act as a body corporate with capacity to sue and be sued and own property, funded not only by Parliament but also by levies and fees. Relying on Midrocwater Drilling and Kimoi Ruto, the court held state corporations are not 'Government' under the Government Proceedings Act. Taking judicial notice of its public character, the court nevertheless exercised discretion to condition the stay on payment of Kshs.5,000,000 to the Petitioner.
Legal principles established
#- A state corporation established under an Act of Parliament is a body corporate capable of suing and being sued and is not exempt from security requirements merely because it is funded from public funds
Court orders
#- 1.Stay of execution of the judgment and decree issued on 7th August 2020 pending hearing and determination of Civil Appeal No. E286 of 2020, National Industrial Training Authority & Another v Paul Kipsang Kosgei & Others
- 2.Stay conditional upon payment of Kshs.5,000,000.00 to the Petitioner within 30 days from the date of the ruling
- 3.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kipsang Kosgei v National Industrial Training Authority & another; Cabinet Secretary, Ministry of Labour & Social Services (Interested Party) [2021] KEELRC 1286 (KLR)", Case Analysis (2021). Petition (stay application in respect of Judgment of 7th August 2020); intended appeal Civil Appeal No. E286 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1286/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.