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ELRCDismissedNot stated in judgment· [2022] KEELRC 918 (KLR)

David Wekesa Nambafu v BOB Morgan Services Limited [2022] KEELRC 918 (KLR)

Employment and Labour Relations Court
3 February 2022
LNLINNET NDOLO
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to delay paying a sacked worker because it filed an appeal notice but never actually filed the appeal itself.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Linnet Ndolo J, delivered virtually at Nairobi on 3rd February 2022, determined the Respondent's application for stay of execution of a judgment entered on 29th April 2020 by O.N Makau J awarding the Claimant Kshs. 2,043,500 as salary for a six-year suspension period, together with costs and interest. The Respondent, having lodged a Notice of Appeal on 13th May 2020, sought stay on the grounds that it had an arguable appeal, that the typed proceedings had not been availed by the registry, that settlement negotiations had failed, and that the Claimant's address and assets were unknown, exposing it to substantial loss. It offered to furnish security. The Claimant opposed the application as incompetent and an afterthought, noting that under the Appellate Jurisdiction Act, Cap 9, the Respondent was required to file its Memorandum and Record of Appeal within sixty days of the Notice of Appeal, a period that lapsed on or about 13th July 2020. The Respondent had taken no step for over fifteen months and produced no Certificate of Delay, and no evidence showed the Claimant was a man of straw unable to refund the decretal sum. The court held that no appeal was on record, that the Respondent had not sought enlargement of time, and that the application was therefore incompetent. It dismissed the application, vacated the interim orders granted on 8th October 2021, and awarded costs.

Key legal issues

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01

Competence of a stay of execution application where no appeal is on record

Holding

The application fails because the time for filing the Record of Appeal expired and no extension of time was sought, so there is no appeal to which a stay could attach

Reasoning

The court observed that the Respondent lodged a Notice of Appeal on 13th May 2020 but never filed a Record of Appeal within the sixty days prescribed under the Appellate Jurisdiction Act, Cap 9. Nor had the Respondent sought leave for enlargement of time. The court therefore concluded that no appeal existed on record and the stay application was incompetent and an abuse that would only delay the cause.

p. 2
02

Substantial loss and security in a stay application

Holding

The Respondent's claim of substantial loss was unsupported; the Claimant had not been shown to be a man of straw incapable of refunding the decretal sum

Reasoning

The Claimant countered that no evidence was presented to show he could not refund the decretal sum should the appeal succeed, and that the Respondent had not produced a Certificate of Delay to explain its failure to prosecute the appeal. The court treated the application as an afterthought aimed at frustrating and delaying the cause of justice.

p. 2

Legal principles established

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  • An application for stay of execution pending appeal is incompetent where no appeal is on record, the period for filing the Record of Appeal having lapsed without leave for enlargement of time

Court orders

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  1. 1.The Respondent's application dated 1st October 2021 is dismissed with costs to the Respondent
  2. 2.The interim orders granted on 8th October 2021 are vacated

Authorities

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Legislation

  • Appellate Jurisdiction ActCap 9, Laws of Kenya
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court to grant stay of execution pending appeal (application brought under the court's case management/practice; no specific provision quoted)

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, "David Wekesa Nambafu v BOB Morgan Services Limited [2022] KEELRC 918 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/918/eng@2022-02-03

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