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ELRCPartially AllowedApplication dated 11/2/2021 arising from Nairobi CMCC Case No. 1431 of 2019 (Appeal filed 15/10/2020)· [2021] KEELRC 1509 (KLR)

University of Nairobi v Mary M. Cornelius [2021] KEELRC 1509 (KLR)

Employment and Labour Relations Court
17 June 2021
MNMathews N. Nduma
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused a full freeze on a judgment debt, ordering the University of Nairobi to pay half now while the appeal continues.

What this practically means

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Executive summary

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The University of Nairobi (Respondent/Applicant) moved the Employment and Labour Relations Court by Notice of Motion dated 11/2/2021 seeking stay of execution of a judgment and decree of the Nairobi Chief Magistrate's Court in CMCC Case No. 1431 of 2019 delivered on 29/9/2020, awarding the claimant, Mary M. Cornelius, Kshs. 2,282,137, principally Kshs. 1,855,697.37 in gratuity under the applicable Collective Bargaining Agreement. The applicant filed an appeal on 15/10/2020 and alleged the claimant had no means to refund the decretal sum if the appeal succeeded. The claimant opposed, arguing stay is not automatic and that the applicant had not demonstrated substantial loss, absence of delay and security. The court, Mathews N. Nduma J, reaffirmed that the power to grant stay pending appeal is discretionary and must not render an appeal nugatory; an applicant must show an arguable appeal, absence of undue delay, substantial loss and adequate security. It found no inordinate delay and an offer of security, but noted the supporting affidavit sworn by the applicant's advocate failed to demonstrate the potency of the appeal and no Memorandum of Appeal was attached. The court issued conditional orders: the applicant to pay half the decretal sum forthwith or place half in a joint interest-earning account in the names of the parties' advocates, failing which stay over that half lapses and the claimant may execute; each party to bear their own costs of the application. The ruling was delivered online under COVID-19 directions.

Key legal issues

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01

Conditions for stay of execution pending appeal

Holding

Stay is discretionary and conditional on demonstrating substantial loss, no delay, security, and an arguable appeal; the court may craft conditional orders balancing the parties' interests

Reasoning

The court applied Order 42 Rule 6 principles as articulated in the cited authorities. It found no inordinate delay, an offer of security, and no demonstration that the appeal was arguable since no Memorandum of Appeal was attached. It therefore crafted a compromise: half the decretal sum to be paid or deposited in a joint interest-earning account, failing which stay over that half lapses.

p. 2
02

Evidentiary weight of an advocate's affidavit

Holding

An advocate cannot depose to facts not within his personal knowledge on behalf of an applicant

Reasoning

The court noted that the supporting affidavit was sworn by the advocate for the applicant, Donald B. Kipkorir, and that the potency of the appeal was not demonstrated in it nor was a Memorandum of Appeal attached. This deficiency weighed against granting a full stay.

p. 2

Legal principles established

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  • The power to grant or refuse stay of execution pending appeal is discretionary and should be exercised so as not to prevent an appeal or render it nugatory
  • An applicant for stay must demonstrate an arguable appeal and readiness to provide adequate security
  • An advocate should not depose to facts not within his personal knowledge on behalf of a party

Court orders

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  1. 1.The applicant to pay to the respondent half of the decretal sum forthwith
  2. 2.Half of the decretal sum to be placed in a joint interest-earning account in the names of the advocates of the parties
  3. 3.If conditions (i) and (ii) are not fulfilled by default of the applicant within 30 days, stay of execution in respect of the half amount to lapse and the claimant to execute forthwith
  4. 4.Each party to bear their costs of the application

Authorities

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Legislation

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

Cases cited (11)

  • James Wangalwe & Another –vs- Agnes Cheseto
    [2012] eKLR
  • RWW –vs- EKW
    [2019] eKLR
  • Absalom Dova –vs- Tarbo Transporters
    [2013] eKLR
  • Mwaura Karuga t/a Limit Enterprises –vs- Kenya Bus Services Ltd. & 4 Others
    [2015] eKLR
  • Butt –vs- Rent Restriction Tribunal
    {1979} eKLR
  • Eldoret Steel Mills Ltd –vs- Elijah Mosota
    [2007] eKLR
  • Kenya Hotel Properties Limited –vs- Willesden Investments Limited
    (2007) eKLR
  • Gitahi and Another –vs- Warugongo
    1988 [KLR] 621
  • Edward Muchiri Ituma –vs- Beatrice Wangigi & 9 Others
    [2019] eKLR
  • Kamlesh M.A. Pattni –vs- Nasir Ibrahim Ali & 2 Others
    CA 354/2004
  • Delphis Bank Limited –vs- Channan Singh Chatthe & 5 Others
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Nairobi
CMCC Case No. 1431 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "University of Nairobi v Mary M. Cornelius [2021] KEELRC 1509 (KLR)", Case Analysis (2021). Application dated 11/2/2021 arising from Nairobi CMCC Case No. 1431 of 2019 (Appeal filed 15/10/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1509/eng@2021-06-17

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