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ELRCPartially AllowedNotice of motion dated 15th December 2021, filed in an appeal from Milimani CMELR No. 273 of 2020· [2022] KEELRC 759 (KLR)

Kellen Wangari Gitonga v Judith Majuma Matimbo [2022] KEELRC 759 (KLR)

High Court of Kenya (Employment and Labour Relations appeal)
21 February 2022
3,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court paused collection of a Kshs.407,000 employment award pending appeal, but only if the employer deposits half the money and secures the balance within 45 days.

What this practically means

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Executive summary

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The Appellant/Applicant, dissatisfied with the judgment and decree of the lower court in Milimani CMELR No. 273 of 2020 delivered on 6th July 2021, by which the Respondent was awarded Kshs.407,635.80 in terminal dues following termination of her employment, moved the Court under Order 42 Rule 6 of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 for stay of execution pending appeal. The applicant argued the decretal sum was colossal, attachment was imminent, the respondent had no known income or abode and recovery prospects were nil, and offered a bank guarantee as security. The respondent opposed, contending the application was a delaying tactic brought some five months after judgment despite a 30-day stay and unanswered payment demands, and that she had already incurred execution expenses. The singular issue was whether the application for stay pending appeal was merited. Applying Order 42 Rule 6 and the authorities, the court found substantial loss demonstrated: the respondent had not shown ability to reimburse the decretal sum, and the proclaimed items were exclusively domestic. The offer of a bank guarantee was accepted as bona fide security. Although the court found the four to five month delay inordinate and unexplained, it exercised its discretion in the applicant's favour because the other requirements were met. The court granted a stay of execution pending appeal on conditions: deposit of half the decretal sum into a joint interest-earning account and security for the balance within 45 days, failing which the respondent may execute. Costs were made costs in the appeal.

Key legal issues

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01

Whether the application for stay of execution pending appeal satisfies Order 42 Rule 6

Holding

Granted on conditions despite unexplained delay of about four months, because substantial loss/nugatory risk was demonstrated and security was offered.

Reasoning

The court found the decretal sum substantial and the respondent's ability to reimburse it if the appeal succeeded unproven, shifting the evidential burden after the applicant expressed reasonable fear of non-recovery. The proclamation showed only domestic items including sheep and goats valued at Kshs.27,000/-. The offer of a bank guarantee was accepted as bona fide security. Though the delay of about four to five months was inordinate and unexplained, the discretionary power was exercised in the applicant's favour since the other Order 42 Rule 6 requirements were met.

p. 5
02

Whether the delay in bringing the application was undue

Holding

Yes - the delay was inordinate and unexplained, but not fatal to the application.

Reasoning

Judgment was delivered on 6th July 2021 with a 30-day stay; the application was filed in mid-December 2021, some five months later, with demands for payment in August and December 2021 unanswered. The applicant made no attempt to explain the delay and was found to be using the appeal to camouflage inaction. Nevertheless, the court held that because the other requirements of Order 42 Rule 6 were demonstrated and the power is discretionary, the application was merited.

p. 5

Legal principles established

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  • An applicant for stay pending appeal need not know the respondent's resources in detail; once a reasonable fear of inability to repay is expressed, the evidential burden shifts to the respondent.
  • Willingness to provide security does not necessarily mean ability to pay; security may take many forms including a bank guarantee or insurance bond.
  • Inordinate, unexplained delay in filing a stay application is a serious failing under Order 42 Rule 6, but the court retains discretion to grant stay where the other requirements are demonstrated.

Court orders

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  1. 1.Prayer no. 3 of the notice of motion granted - stay of execution of the judgment and decree of the Lower Court in Milimani CMELR No. 273 of 2020 pending the hearing and determination of the appeal
  2. 2.The Appellant/Applicant to deposit half of the decretal sum in a joint interest earning account in the names of the Advocates for both parties within 45 days
  3. 3.The Appellant/Applicant to provide security for the balance within 45 days
  4. 4.In default of either condition, the Respondent at liberty to execute the decree
  5. 5.Costs of the application to be costs in the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure ActSections 3A and 63(e)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Directline Assurance Company Limited v Mary Chepkemei Cheruiyot & another
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another
    [2006] eKLR
  • Nduhiu Gitahi & another v Anna Wambui Warugongo
    [1988] 2 KAR 621
On appeal from
Milimani Chief Magistrate's Court (Employment and Labour Relations)
CMELR No. 273 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 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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Later judgments citing this (1)

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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, "Kellen Wangari Gitonga v Judith Majuma Matimbo [2022] KEELRC 759 (KLR)", Case Analysis (2022). Notice of motion dated 15th December 2021, filed in an appeal from Milimani CMELR No. 273 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/759/eng@2022-02-21

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