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ELRCDismissedNot stated in the judgment excerpt· [2021] KEELRC 1418 (KLR)

David Wamwiri v Bata Shoe Company (K) Ltd [2021] KEELRC 1418 (KLR)

Employment and Labour Relations Court
10 June 2021
MMM. Mbaru
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Bata Shoe's bid to extend a lapsed stay of execution failed because it cited the wrong court rule, delaying a Ksh.2 million award.

What this practically means

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Executive summary

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The respondent, Bata Shoe Company (K) Ltd, filed an application dated 24th November 2020 under section 12(3) of the Employment and Labour Relations Court Act, 2011 and Order 22 Rule 22 of the Civil Procedure Rules, seeking extension of a stay of execution due to lapse on 24th November 2020 and/or stay pending the hearing and determination of its intended appeal against the judgment delivered on 11th November 2020, with costs. Through the affidavit of Priscah Chege, it argued the appeal had high chances of success, that a Notice of Appeal was filed without delay, and that substantial loss would ensue as the petitioner, awarded Ksh.2 million, might be unable to refund it; the respondent offered to abide conditions including security. The petitioner opposed, calling the application abusive and premature: Order 22 Rule 22 applies to stay of execution by the court from which a decree has been sent for execution, not stay pending appeal, which falls under Order 42; the earlier stay had lapsed and nothing remained to extend; no decree had been extracted; and substantial loss was not demonstrated, the award being nominal and the petitioner having secured new employment. Relying on its own authorities, the petitioner urged dismissal. The court framed one issue - whether stay should issue. Holding that the respondent's submissions belonged to Order 42 Rule 6 and not Order 22 Rule 22, and that the lapsed stay left nothing to extend, the court found the application premature and dismissed it with costs to the petitioner on 10th June 2021.

Key legal issues

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01

Whether stay of execution should issue under section 12(3) ELRC Act and Order 22 Rule 22

Holding

The application was dismissed as premature and without merit because Order 22 Rule 22 does not support stay pending appeal, and the earlier stay had lapsed with nothing left to extend.

Reasoning

The court observed that the respondent's submissions (nugatory appeal, substantial loss, refundability of the judgment sum) belonged to an application under Order 42 Rule 6, not Order 22 Rule 22. Since the stay previously granted expired on 24th November 2020 and was never extended, no live order existed for extension. The court therefore found the application premature as framed, even though it was filed without delay, and dismissed it with costs to the petitioner.

p. 2

Legal principles established

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  • Order 22 Rule 22 does not support stay of execution pending appeal; that relief falls under Order 42 Rule 6.
  • Where a stay order has lapsed without extension, there is nothing for the court to extend and an application premised on extension is premature.

Court orders

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  1. 1.Application dated 24th November, 2020 found without merit and dismissed
  2. 2.Costs to the petitioner
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act, 2011 and Order 22 Rule 22 of the Civil Procedure Rules

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, "David Wamwiri v Bata Shoe Company (K) Ltd [2021] KEELRC 1418 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1418/eng@2021-06-10

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