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ELRCPartially AllowedNot stated in the excerpt (ELRC cause determined by Judgment of 7th November 2019)· [2021] KEELRC 2073 (KLR)

Martin Wamae Wangu & 294 others v Bidco Africa Limited [2021] KEELRC 2073 (KLR)

Employment and Labour Relations Court
19 February 2021
2,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted an employer a stay of a Kshs 14.4 million award only if it first paid most of the money owed.

What this practically means

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Executive summary

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This was a ruling on the Respondent/Applicant's Notice of Motion dated 2nd November 2020 seeking stay of execution of the judgment and decree delivered in favour of the claimants, pending an intended appeal to the Court of Appeal. The application was brought under Sections 3, 12(3) and (4) of the Employment Act, Rule 17 of the ELRC (Procedure) Rules 2016 and Order 42 Rule 6 of the Civil Procedure Rules 2010, supported by an affidavit of Judy Rebecca Momanyi, the applicant's Head of Legal. The claimants, through a replying affidavit of the 1st claimant Martin Wamae, opposed the application as bad faith and delay, and sought half the decretal sum with the balance in a joint interest-earning account if stay were granted. The applicant relied on authorities on substantial loss, reasonable delay and security. Framing one issue - whether the applicant met the Order 42 Rule 6(2) threshold - Maureen Onyango J applied the Butt v Rent Restriction Tribunal principles. She found the delay from November 2019 to November 2020 sufficiently explained by an earlier withdrawn review application, a pending bill of costs and unassessed fees for typed proceedings. Substantial loss was established because the unemployed claimants could not demonstrate ability to refund the decretal sum. However, since the appeal attacked only quantum and Kshs.6,456,742.96 of the tabulation was undisputed, the likelihood of success was doubtful and grounds not touching quantum were superfluous. The court granted conditional stay: payment of Kshs.6,456,742.96 plus half the balance (Kshs.7,981,455.50), the balance in a joint interest-earning account within 30 days, failing which execution for the entire decretal sum could proceed. Costs of the application were made costs in the appeal.

Key legal issues

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01

Whether the applicant satisfied the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

Stay was granted on conditions: the delay was sufficiently explained and substantial loss was demonstrated because the claimants, being unemployed, would be unable to refund the decretal sum if the appeal succeeded; however, because the appeal was only on quantum and Kshs.6,456,742.96 was undisputed, conditional stay was ordered

Reasoning

The court applied the Butt v Rent Restriction Tribunal principles. Delay from 7th November 2019 to 2nd November 2020 was found sufficiently explained, including by the earlier review application and the pendency of the bill of costs. Substantial loss was established since the claimants could not demonstrate ability to refund. The court nevertheless noted the appeal was on quantum only, making success doubtful, and imposed payment conditions protecting the decree-holders in the interest of justice.

p. 4
02

Inordinate delay

Holding

Although there was delay from 7th November 2019 to 2nd November 2020, it was sufficiently explained by the intervening review application, the request for proceedings and the pending bill of costs

Reasoning

The applicant filed notices of appeal and requested typed proceedings promptly after judgment, pursued a review application which was later withdrawn, and the bill of costs was pending. These intervening circumstances explained the delay in filing the present application, satisfying the first limb of Order 42 Rule 6(2).

p. 3
03

Substantial loss and the strength of the intended appeal

Holding

Substantial loss was shown, but the appeal was confined to quantum, with the tabulation of Kshs.6,456,742.96 undisputed, so the likelihood of success was doubtful

Reasoning

The claimants had not demonstrated they could refund the decretal sum, risking a nugatory appeal. However, the grounds of appeal attacked only quantum; the itemised tabulation was not disputed and the judgment on the entitlement to one month's notice and one month's leave pay per year of service was not under appeal, rendering other grounds superfluous.

p. 4

Legal principles established

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  • Order 42 Rule 6(2) of the Civil Procedure Rules bars the court from ordering stay of execution pending appeal unless the application is brought without inordinate delay, the applicant demonstrates substantial loss, and the applicant is willing to give security as the court may deem fit
  • In determining a stay application, the court must balance the right to appeal against the rights of a litigant with a valid decree

Court orders

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  1. 1.Stay of execution of the Judgment and decree pending appeal be and is hereby allowed on conditions that the Respondent/Applicant do pay the claimants the sum of Kshs.6,456,742.96 that has not been disputed and a further one half of the balance that is Kshs.7,981,455.50
  2. 2.The balance of the decretal sum to be deposited in a joint interest earning account within 30 days from the date hereof
  3. 3.Failure by the Respondent/Applicant to meet conditions in (1) above, the Claimants/Respondent be at liberty to proceed with execution for the entire decretal sum
  4. 4.Costs of the Application shall be costs in the Appeal

Authorities

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Legislation

  • Employment ActSections 3, 12(3) and (4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2); Order 42 Rule 4(2)(b); Order 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (6)

  • Meteine Ole Kilelu & 10 Others v Moses K. Nailole
    (2009) eKLR
  • Sarah N. Sakwa v Elizabeth Wamwanyi T/A Namukhosi Limited & Another
    (2017) eKLR
  • John Mwangi Ndiritu v Joseph Ndiritu Wamathai
    (2016) eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    (2014) eKLR
  • Richard Muthusi v Patrick Gituma Ngomo & Another
    (2017) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Sections 3, 12(3) and (4) of the Employment Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016; Order 42 Rule 6 of the Civil Procedure Rules 2010

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, "Martin Wamae Wangu & 294 others v Bidco Africa Limited [2021] KEELRC 2073 (KLR)", Case Analysis (2021). Not stated in the excerpt (ELRC cause determined by Judgment of 7th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2073/eng@2021-02-19

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