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ELRCPartially AllowedNotice of Motion dated 12th February, 2021 (application in Employment and Labour Relations Court Cause)· [2021] KEELRC 1308 (KLR)

Joseph Ayora Omwena v Multiscope Consulting Engineering Limited [2021] KEELRC 1308 (KLR)

Employment and Labour Relations Court
8 July 2021
MNMathews N. Nduma
1,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer seeking to delay paying a court award got only half a break: stay granted, but only if half the money is paid upfront.

What this practically means

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Executive summary

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The respondent/applicant moved the court by Notice of Motion dated 12th February, 2021 seeking stay of execution of a judgment of Hon. Wasilwa J. delivered on 26th January, 2021 awarding Kshs.2,979,234.40 subject to statutory deductions, together with costs. The applicant, through the supporting affidavit of its Managing Director, Engineer Samuel W. Maungo, argued that the decretal sum was large, that the claimant had no known physical or financial means and could not refund it if the appeal succeeded, that the appeal was arguable with high chances of success, and that during the COVID-19 period the respondent faced economic hardship and the appeal would be rendered nugatory. The applicant offered security. The claimant opposed, contending the appeal was unarguable, the application frivolous and a pretext to deny him the fruits of a sound judgment after litigating since 2016, and that there was no evidence he could not refund the sum. The court held that the applicant bore the onus, on a balance of probabilities, to establish an arguable appeal, nugatory-ness/substantial loss, absence of unreasonable delay, and willingness to furnish security per Order 42 Rule 6(2), applying Butt vs Rent Restriction Tribunal, Lily Yeko Ngwenye vs World Vision Kenya, and Banking Insurance and Finance Union (Kenya) vs Co-operative Bank of Kenya. Finding no tangible evidence the claimant was a person of straw, and balancing the parties' interests, the court granted a conditional stay: 50% of the decretal amount to be paid to the claimant and 50% deposited in an interest-earning joint account of both advocates within 30 days, failing which the stay would automatically lapse.

Key legal issues

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01

Conditions for grant of stay of execution pending appeal

Holding

Stay granted conditionally: half the decretum paid to the claimant and half deposited in an interest-earning joint account, failing which the stay lapses

Reasoning

The court applied Order 42 Rule 6(2) conditions and the Butt principle, but balanced them against the claimant's long wait for the fruits of his judgment since 2016 and the absence of tangible evidence that the claimant could not refund the decretal sum. Conditional stay balanced the parties' interests.

p. 2
02

Burden of proof on stay applicant

Holding

The respondent/applicant bears the onus to demonstrate the Order 42 Rule 6(2) conditions on a balance of probabilities

Reasoning

The court held that the applicant must show an arguable appeal, that the appeal would be rendered nugatory, substantial loss, and readiness to furnish security. Mere apprehension about the claimant's means, without tangible evidence, did not discharge that burden.

p. 1

Legal principles established

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  • The applicant for stay bears the onus, on a balance of probabilities, to show an arguable appeal, that the appeal would be rendered nugatory, substantial loss, and willingness to furnish security
  • General principle: a stay should be granted so an appeal is not rendered nugatory should the decision be reversed, absent overwhelming hindrance

Court orders

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  1. 1.An order for stay of execution of the judgment delivered on 26th January, 2021 and the decree thereof is granted on condition that the respondent/applicant pays 50% of the decretal amount within 30 days of the ruling
  2. 2.50% of the decretal sum be placed in an interest earning joint account in the name of the advocates for the claimant and that for the respondent within 30 days of the ruling
  3. 3.In the event the respondent/applicant does not comply with orders (a) and (b), the stay orders shall automatically lapse

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, Rule 6(2)
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18

Cases cited (3)

  • Butt vs Rent Restriction Tribunal
    (1982) eKLR
  • Lily Yeko Ngwenye vs World Vision Kenya
    [2020] eKLR
  • Banking Insurance and Finance Union (Kenya) vs Co-operative Bank of Kenya Limited
    (2017) eKLR, Employment and Labour Relations Court Cause No. 213 of 2015
On appeal from
Employment and Labour Relations Court
Cause with judgment delivered on 26th January, 2021 (Cause number not stated)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules; Article 159(2)(d) and Article 48 of the Constitution; Section 18 of the Civil Procedure Act (for online delivery)

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, "Joseph Ayora Omwena v Multiscope Consulting Engineering Limited [2021] KEELRC 1308 (KLR)", Case Analysis (2021). Notice of Motion dated 12th February, 2021 (application in Employment and Labour Relations Court Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1308/eng@2021-07-08

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