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ELRCPartially AllowedKisumu ELRC No. 258 of 2018 (application dated 2/7/2020)· [2021] KEELRC 2190 (KLR)

Kenya Union of Sugar Plantation & Allied Workers v West Kenya Sugar Company Limited [2021] KEELRC 2190 (KLR)

Employment and Labour Relations Court
11 February 2021
MNMathews N. Nduma
1,011 words in judgment
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The bottom line

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A Kenyan employment court paused payment of salary arrears to over 770 former casual workers because the sugar company showed a real risk of losing that money if its appeal succeeded.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (Mathews N. Nduma, J) delivered online at Nairobi on 11 February 2021 on the respondent's (West Kenya Sugar Company Limited's) application dated 2 July 2020. The applicant sought a stay of execution of the ruling delivered on 16 April 2020 in Kisumu ELRC No. 258 of 2018, which ordered implementation of backdated salary increments for all casual employees who had worked for the applicant for a continuous period of two months, in terms of Clause 34 of the CBA, and payment within 30 days. The applicant argued its former advocates inadvertently failed to seek stay; a notice of appeal was filed on 28 May 2020; the decretal sum was very large; the contracts of the casuals had lapsed; and recovery of salaries paid would be difficult if the appeal succeeded. The claimant (the Union) opposed, contending the ruling flowed from a consent dated 28/8/2018, no stay was sought at delivery, no draft memorandum of appeal was attached, and the claimant was entitled to the fruits of the judgment. Relying on the Court of Appeal decision in build v Rent Restrictions Tribunal (Civil Appeal No. NAI 6 of 1979), the court found that the decretal sum was very large (salary arrears for over 770 formerly designated casual workers), that substantial loss had been demonstrated, and that a stay was needed so a successful appeal would not be rendered nugatory. The application was granted in terms of prayer 3: the ruling of 16/4/2020 was stayed pending the intended appeal, with costs in the cause. The ruling was delivered online pursuant to COVID-19 directions, guided by Articles 159(2)(d) and 48 of the Constitution and Section 18 of the Civil Procedure Act.

Key legal issues

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Whether substantial loss was demonstrated for a stay pending appeal

Holding

The court found substantial loss demonstrated given the large decretal sum owed to over 770 formerly casual workers, and exercised its discretion to preserve the appeal

Reasoning

The court observed that the decretal sum comprised salary arrears for over 770 formerly designated casual workers, that recovery from employees whose contracts had lapsed would be difficult if the appeal succeeded, and thus a stay was warranted to prevent the appeal from being rendered nugatory. The applicant had also filed its notice of appeal on 28/5/2020.

p. 2

Legal principles established

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  • A stay ought to be granted so that an appeal, if successful, may not be rendered nugatory

Court orders

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  1. 1.The Ruling of the Court delivered on 16/4/2020 in Kisumu ELRC No. 258 of 2018 is stayed pending the hearing and determination of intended Appeal noted on 28th May, 2020
  2. 2.Costs in the cause

Authorities

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Legislation

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

Cases cited (1)

  • build –vs- Rent Restrictions Tribunal Civil Appeal No. NAI 6 of 1979
Jurisdiction invoked
Employment and Labour Relations Court's jurisdiction to grant stay of execution pending intended appeal; Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act invoked for online delivery

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, "Kenya Union of Sugar Plantation & Allied Workers v West Kenya Sugar Company Limited [2021] KEELRC 2190 (KLR)", Case Analysis (2021). Kisumu ELRC No. 258 of 2018 (application dated 2/7/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2190/eng@2021-02-11

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