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ELRCPartially AllowedNot stated in the extract (arising from appeal against judgment in Ruiru SPM ELRC No. 36 of 2020)· [2022] KEELRC 725 (KLR)

Benisa Limited v John Ngotho Maina [2022] KEELRC 725 (KLR)

Employment and Labour Relations Court
23 February 2022
2,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 at Nairobi (Gakeri J) on a Notice of Motion dated 23rd December 2021 brought under Section 12(1) and (3) of the Industrial Court Act 2011 and Rule 16(1) of the Industrial Court Procedure Rules, seeking stay of execution of the judgment of 22nd November 2021 in Ruiru SPM ELRC No. 36 of 2020, in which the Respondent was awarded Kshs.624,000/- as general damages plus costs and interest. The Applicant argued it had an arguable appeal, stood to suffer substantial loss as the decretal sum might be irrecoverable, and was willing to furnish security. The Respondent opposed, contending that no substantial loss was demonstrated, the application was a delay tactic, and the Applicant had been indolent. Applying Butt v Rent Restriction Tribunal, Halal v Thornton & Turpin and National Industrial Credit Bank v Wasike, the court held that once the Applicant expressed reasonable fear of non-recovery, the evidential burden shifted to the Respondent, who failed to discharge it; the 17-day interval before filing was not unreasonable delay; and the offer of security evidenced good faith. The Respondent's cross-appeal reinforced the case for a stay. The court allowed the motion in terms of prayer 3, conditional on the Applicant depositing the decretal sum in a joint interest-earning account in the names of both parties' advocates within 45 days, failing which the stay lapses and the Respondent may execute. Costs were awarded in the appeal.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

Yes - reasonable apprehension that the decretal sum would be irrecoverable was established on a balance of probabilities; the Respondent did not discharge the shifted evidential burden

Reasoning

The grounds of opposition made no reference to the Respondent's sources of income, assets or capacity to repay. Applying National Industrial Credit Bank v Wasike, once the Applicant expressed reasonable fear of non-recovery, the evidential burden shifted to the Respondent, who filed only deficient grounds of opposition and no evidence of the claim that the appeal was hopeless.

p. 4
02

Whether the Applicant was guilty of unreasonable delay

Holding

No - 17 days of inaction was not unreasonable in the circumstances

Reasoning

The Notice of Appeal was filed within time, the memorandum of appeal on 6th December 2021, and the application on 23rd December 2021. Although not filed with haste, the 17-day interval was not characterised as unreasonable delay.

p. 4
03

Security for due performance

Holding

The Applicant's offer of security indicated good faith; the court imposed deposit of the decretal sum in a joint interest-earning account as its condition

Reasoning

Relying on Focin Motorcycle and Patrick Kanaka Munyao, the court held the offer to furnish security satisfied that ground, with the court retaining discretion on the form of security. It rejected splitting the sum, ordering deposit of the whole decretal amount within 45 days, failing which the stay lapses.

p. 4

Legal principles established

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  • Once an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to demonstrate his resources
  • An offer to provide security is a mark of good faith and satisfies that ground of stay, with the court retaining discretion over the kind of security
  • A short period of inaction (17 days) between filing the memorandum of appeal and the stay application does not amount to unreasonable delay

Court orders

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  1. 1.Stay of execution of the judgment of 22nd November 2021 in Ruiru SPM ELRC No. 36 of 2020 granted in terms of prayer No. 3, conditional on the Applicant depositing the decretal sum in a joint interest-earning account in the names of Advocates for both parties within 45 days
  2. 2.If the deposit condition is not met within 45 days, the stay stands vacated and the Respondent may execute
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Industrial Court ActSection 12(1) and (3)
  • Industrial Court Procedure RulesRule 16(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (12)

  • Growers Association & Another v Kenya Plantations and Agricultural Workers Union
    [2012] eKLR
  • Jaybhay v Cassim
    [1939] AD 537-551
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • Transport & Allied Workers Union v Glory Driving School
    [2021] eKLR
  • Patrick Kanaka Munyao v Cementers Ltd
    [2017] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another
    [2006] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Elena Doudoladova Korir v Kenyatta University
    [2014] eKLR
  • Halal & another v Thornton & Turpin Ltd
    [1990] eKLR
  • Hassan Guyo Wakalo v Straman East Africa Ltd
    [2013] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Directline Assurance Company Limited v Michael Njima Muchiri & another
    [2020] eKLR
On appeal from
Ruiru Senior Principal Magistrate's Court (ELRC)
SPM ELRC No. 36 of 2020
Jurisdiction invoked
Section 12(1) and (3) of the Industrial Court Act 2011 and Rule 16(1) of the Industrial Court Procedure Rules

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, "Benisa Limited v John Ngotho Maina [2022] KEELRC 725 (KLR)", Case Analysis (2022). Not stated in the extract (arising from appeal against judgment in Ruiru SPM ELRC No. 36 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/725/eng@2022-02-23

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