Stephen Maina Githaiga v A.C.K Diocese of Mt.Kenya West Trustees Registered & another [2021] KEELRC 1324 (KLR)
The bottom line
#A Kenyan employment court granted a stay of execution despite a year's delay, blaming the applicant's lawyer and looming costs execution.
What this practically means
#Executive summary
#Key legal issues
#Whether delay of over one year in bringing the stay application disqualifies the Applicant
The court found the delay sufficiently explained: the Applicant's former counsel delayed in setting up the appeal, and poverty, unemployment and Covid-19 restrictions prevented him raising instruction fees for new counsel.
The Applicant attributed the delay to his former advocate B.G. Mwangi's failure to progress the appeal, which came to his knowledge later. He further blamed unemployment and Covid-19 strictures for his inability to raise instruction fees. The court accepted that a litigant cannot be punished for counsel's mistakes and found the delay explained, tilting the application in the Applicant's favour.
Whether substantial loss and nugatory-appeal conditions for stay under Order 42 rule 6 were satisfied
The court held that refusal of stay would render the intended appeal nugatory because the Respondent would execute for taxed costs; the negative-order argument was rejected.
Applying the two conditions from Abok J. Odera v Kenya Posts & Telecommunication Corporation (arguable appeal and nugatory appeal) and the 'substantial loss' principle, the court found that execution for costs would leave the Applicant 'hanging and breathless' and negate his intention to appeal. The Respondent's submission that the dismissal judgment was a negative order incapable of execution was found hollow.
Whether the judgment of 4th February 2020 was a negative order incapable of execution
The court rejected the negative-order argument, holding that execution on the taxed costs was imminent and would defeat the intended appeal.
The 2nd Respondent relied on Western College of Arts and Applied Sciences v Oranga and KCB v Tamarind Meadows, submitting that a dismissal with costs only is a negative order incapable of execution save as to costs. The court distinguished that submission because a ruling on the Bill of Costs was imminent, making execution for costs a real prospect that would render the appeal nugatory.
Legal principles established
#- A litigant should not be punished for the mistakes or inaction of his counsel; explained delay attributable to counsel may justify indulgence in an application for stay
- Where execution on a costs decree would render a party's intended appeal nugatory and the delay is explained, stay of execution should issue notwithstanding the negative-order argument
Court orders
#- 1.Stay of execution of the judgment and decree made on 4th February 2020, pending the hearing and final determination of the Applicant's Civil Appeal No. 86 of 2020
- 2.Each party to bear their own costs of the application
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Maina Githaiga v A.C.K Diocese of Mt.Kenya West Trustees Registered & another [2021] KEELRC 1324 (KLR)", Case Analysis (2021). Application dated 30th October, 2020 (Employment and Labour Relations Court, Nyeri; referenced against Civil Appeal No. 86 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1324/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.