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ELRCAllowedBungoma ELRC C No. 3 of 2019 (Notice of Motion dated 8th January 2022)· [2022] KEELRC 1211 (KLR)

Ojuok v Population Services Kenya (Cause 3 of 2019) [2022] KEELRC 1211 (KLR)

Employment and Labour Relations Court
18 May 2022
JKJ. W. Keli
1,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court paused execution of an award against Population Services Kenya, but only after the employer deposited the full decretal sum in a joint account.

What this practically means

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Executive summary

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Following judgment in Bungoma ELRC Cause No. 3 of 2019 delivered on 31st January 2022 by J.W. Keli J in favour of the Claimant, Dennis Leakey Ojuok, the judgment debtor, Population Services Kenya, moved the court by Notice of Motion under Order 51 and Order 42 rule 6 of the Civil Procedure Rules seeking stay of execution pending an intended appeal to the Court of Appeal, having filed a Notice of Appeal on 3rd February 2022. The Applicant, through the affidavit of Allan Ngunze, asserted it had paid severance pay, offered a bank guarantee of Kshs. 1,377,288/- as security, and warned the appeal would be rendered nugatory if execution proceeded. The Claimant opposed, relying on his title deed and payslip as proof he could refund any sums if the appeal succeeded, and invoking the principle that a successful litigant is entitled to the fruits of judgment. The court applied Order 42 rule 6(2), found the application filed without unnecessary delay, and, adopting Odunga J's formulation in Victory Construction (which it agreed with), held it must balance possible substantial loss to the Applicant against the Claimant's right to enjoy the fruits of judgment. It found the title deed and payslip not easily realizable security and noted the payslip did not evidence payment of the notice pay of Kshs. 228,548/-. Applying Butt v Rent Restriction Tribunal, the court allowed the application and ordered stay conditional on deposit of Kshs. 1,605,826/- into a joint interest-earning account of both law firms within 14 days, failing which the stay lapses automatically. Costs were awarded to the Respondent/Claimant in any event.

Key legal issues

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01

Substantial loss

Holding

The court accepted that payslip and title deed proffered by the Claimant were not easily realizable security, and that the financial position and ability to refund are relevant to substantial loss.

Reasoning

Applying Odunga J's definition in Victory Construction, the court held substantial loss is not the ordinary loss every judgment debtor suffers; where refundability is doubtful, the court must balance the applicant's interest in preserving the appeal against the respondent's right to enjoy the fruits of judgment, and also consider whether the appeal would be rendered nugatory.

p. 3
02

Unnecessary delay

Holding

The application filed on 11th February 2022, following judgment on 31st January 2022, was made without delay.

Reasoning

Order 42 rule 6(2) requires the application be made without unnecessary delay; the court found the 11-day interval satisfied this condition.

p. 2
03

Security for due performance

Holding

Stay was granted conditional on deposit of the outstanding decretal sum of Kshs. 1,605,826/- (Kshs. 1,377,288/- plus notice pay of Kshs. 228,548/-) in a joint interest-earning account.

Reasoning

The court found the payslip annexed did not evidence payment of the notice pay awarded, despite the Applicant's claim that notice pay had been paid with severance. It therefore fixed security at the total outstanding sum, balancing the judgment creditor's rights against the appeal not being rendered nugatory.

p. 4

Legal principles established

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  • A monetary decree can be adequately protected by costs and interest, and stay should balance the judgment creditor's right to the fruits of judgment against the risk of the appeal being rendered nugatory.

Court orders

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  1. 1.Stay of execution of the judgment and/or decree in Bungoma ELRC Cause No. 3 of 2019 pending the filing, hearing and determination of the intended appeal to the Court of Appeal, on condition that Kshs. 1,605,826/- is deposited in a joint interest-earning account in the names of the two law firms representing the parties within 14 days of the order
  2. 2.Failure to comply with the deposit will lead to automatic vacation of the stay order
  3. 3.Costs to the Respondent/Claimant in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (4)

  • Victory Construction v BM (A minor suing through next friend one PMM)
    (2019) eKLR
  • Century Oil Trading Company Limited v Kenya Shell Limited
    Nairobi (HCMA NO. 1561 OF 2007)
  • Butt -vs Rent Restriction Tribunal
    (1982) KLR 417
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
On appeal from
Employment and Labour Relations Court (judgment sought to be appealed to the Court of Appeal)
Bungoma ELRC Cause No. 3 of 2019
Jurisdiction invoked
Order 42 rule 6 and Order 51 of the Civil Procedure Rules

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, "Ojuok v Population Services Kenya (Cause 3 of 2019) [2022] KEELRC 1211 (KLR)", Case Analysis (2022). Bungoma ELRC C No. 3 of 2019 (Notice of Motion dated 8th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1211/eng@2022-05-18

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