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ELRCDismissedNot stated in the excerpt (application arising from judgment delivered 12th August 2020 and final judgment 6th November 2020)· [2022] KEELRC 1084 (KLR)

Thomas M Nguti & 196 others v Kenya Railways Corporation [2022] KEELRC 1084 (KLR)

Employment and Labour Relations Court
17 January 2022
MOMaureen Onyango
3,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya Railways lost its bid to pause paying 197 former employees because the court found it too early—no final amount owed had been agreed yet.

What this practically means

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Executive summary

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Following judgment delivered on 12th August 2020 in favour of the Claimants, with final judgment on tabulated benefits delivered on 6th November 2020, Kenya Railways Corporation, the Respondent, filed a notice of appeal and moved the court by notice of motion seeking interim and substantive stay of execution of the judgment and any resultant decree pending its intended appeal. It supported the application with an affidavit of its Senior Legal Officer, Stanley Gitau, contending that the decretal sum of approximately Kshs.400,000,000 was colossal, that execution would prejudice its operations, and that the 197 Claimants were scattered countrywide with unknown financial means, so any money paid might never be refunded. It urged the court not to order deposit of the decretal sum as security, citing authorities including Oraro & Rachier Advocates v Cooperative Bank of Kenya Limited. The Claimants did not file a replying affidavit or grounds of opposition but filed submissions arguing the application was premature since the decretal amount had not been tabulated, and that the Applicant had not met the Order 42 Rule 6(2) threshold. Justice Maureen Onyango framed a single issue: whether the Applicant met the threshold for the orders sought. Noting that the parties had not agreed on the amount due, the court held the application premature as there was no risk of execution at that stage, found no basis to grant the orders, and dismissed the application. Because the Claimants filed no reply, there were no orders for costs. The ruling was delivered virtually at Nairobi on 17th January 2022 under the COVID-19 court operation directions.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The application was dismissed as premature because the decretal sum had not been agreed or tabulated, so no execution could take place and no substantial loss from execution could arise

Reasoning

The court considered Order 42 Rule 6(2), Section 13 of the ELRC Act and Rule 32 of the ELRC (Procedure) Rules, 2016. It noted it was not in dispute that the parties had not agreed on the amount due, as tabulation was pending. Since no decretal sum existed to execute, there was no risk of execution rendering the intended appeal nugatory. The court therefore found no basis to grant the orders sought.

p. 4

Legal principles established

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  • A stay of execution application is premature where the decretal sum has not been tabulated or agreed, as there is no risk of execution at that stage

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 13
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 32
  • Civil Procedure RulesOrder 42 Rule 6(2); Order 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (17)

  • Meteine Ole Kilelu & 10 others v Moses K. Nailole
    [2009] eKLR
  • Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & another
    [2017] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2013] eKLR
  • Oraro & Rachier Advocates v Cooperative Bank of Kenya Limited
    [2000] eKLR
  • Stanley Mugweru Muchira & 2 others v John Muthike Muchira
    [2020] eKLR
  • Charles Ngatia Nguyo v Erika Gathoni Kariithi & Another
    [2014] eKLR
  • Northwood Service Ltd v Mac & More Solution Ltd
    (2015) eKLR
  • Butt v Rent Restriction Tribunal
  • Antoine Ndiaye v Africa Virtual University
    Nairobi HCCC No. 422 of 2006
  • Kiraita Abuta v Richard Nyandika Nyangoya
    [2019] eKLR
  • Machira t/a Machira & Co Advocates v East African Standard
    [2002] eKLR
  • Ainushamsi Multiple Hauliers Agencies Limited v Francis Ndegwa Karanja & another
    [2020] eKLR
  • Caneland Ltd. & 2 Others vs. Delphis Bank Ltd.
    Civil Application No. Nai. 344 of 1999
  • Kenya Posts & Telecommunications Corporation vs. Paul Gachanga Ndarua
    Civil Application No. Nai. 367 of 2001
  • ABN Amro Bank, N.K. vs. Le Monde Foods Limited
    Civil Application No. 15 of 2002
  • Stephen Wanjohi vs. Central Glass Industries Ltd.
    Nairobi HCCC No. 6726 of 1991
  • M'ndaka Mbiuki v James Mbaaba Mugwira
    [2010] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 13 of the Employment and Labour Relations Court Act; Rule 32 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Thomas M Nguti & 196 others v Kenya Railways Corporation [2022] KEELRC 1084 (KLR)", Case Analysis (2022). Not stated in the excerpt (application arising from judgment delivered 12th August 2020 and final judgment 6th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1084/eng@2022-01-17

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