Martin Wamae Wangu & 294 others v Bidco Africa Limited [2021] KEELRC 2073 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant satisfied the threshold for stay of execution pending appeal under Order 42 Rule 6(2)
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
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.
Inordinate delay
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
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notices of appeal and requested typed proceedings promptly after judgment, pursued a review application which was later withdrawn, and the bill of costs was pending.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).
Substantial loss and the strength of the intended appeal
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
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.
Legal principles established
#- 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
#- 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.The balance of the decretal sum to be deposited in a joint interest earning account within 30 days from the date hereof
- 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.Costs of the Application shall be costs in the Appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.