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ELRCPartially AllowedNot stated in judgment (ELRC Nakuru, contempt and stay applications dated 25 March 2022 and 20 April 2022)· [2022] KEELRC 1481 (KLR)

Kenya Union of Commercial Food and Allied Workers v Almasi Beverage Limited (Cause 87 of 2016) [2022] KEELRC 1481 (KLR)

Employment and Labour Relations Court
2 June 2022
OMOnesmus N Makau
3,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru employment court found a company's top executives in contempt for ignoring a judgment, ruling that a pending appeal does not pause court orders.

What this practically means

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Executive summary

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Two applications came before the ELRC at Nakuru. The claimant union's application dated 25 March 2022 sought enforcement of the judgment of 26 April 2017 (reinstatement of grievants and payment of two months' salary) and the orders of 27 July 2021, and sought that four officials of the respondent (the CEO, Managing Director, General Manager and Human Resource Director) be cited and punished for contempt for wilful disobedience. The respondent's application dated 20 April 2022 sought a stay of proceedings enforcing those orders pending determination of its Civil Application No. E085 of 2021 in the Nakuru Court of Appeal. The respondent argued that it had not wilfully disobeyed the orders, having deposited Kshs 3,450,508, and that its appeal was pending. The claimant countered that the stay application was res judicata and that the orders of 27 July 2021 had been substantially executed save for release of interest earned at Sidian Bank and taxed costs. The court dismissed the respondent's stay application, holding that the threshold in Order 42 Rule 6(2) - substantial loss, no unreasonable delay and security - was not met, that the pending appeal did not challenge the primary judgment, and that a Court of Appeal application cannot operate as a stay. The court found the claimant had proved wilful non-compliance with the judgment and the orders of 27 July 2021 regarding the interest on the deposited sum, cited the four officials for contempt, and directed the respondent to release the interest forthwith, failing which the officials were to appear on 29 June 2022 to show cause why they should not be punished.

Key legal issues

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01

Whether the respondent met the threshold for stay of execution pending appeal

Holding

The application failed because substantial loss was not demonstrated and there is no appeal impugning the primary judgment/decree

Reasoning

The appeal E085 of 2021 concerns only the ruling of 9 December 2021 dismissing the application to set aside the orders of 27 July 2021, not the primary judgment of 26 April 2017. The orders of 27 July 2021 have been executed save for interest and costs, and granting stay would effectively stay the primary decree pending nothing, and would revisit an issue already determined on 16 November 2017 (res judicata).

p. 5
02

Whether the respondent and its named officials should be cited for contempt

Holding

Yes - the claimant proved wilful and deliberate non-compliance with the judgment and the orders of 27 July 2021

Reasoning

The respondent knew the judgment and orders of 27 July 2021 and complied with most of them, but failed to release the interest earned on Kshs 3,450,508 at Sidian Bank despite there being no stay order in place since 27 July 2021; the pending Court of Appeal application does not operate as a stay. The failure of costs payment was excused because costs were not taxed.

p. 7

Legal principles established

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  • Granting stay pending appeal is discretionary and requires satisfaction of the Order 42 Rule 6(2) threshold: substantial loss, no unreasonable delay, and security
  • A pending application in the Court of Appeal does not operate as a stay of execution
  • Elements of civil contempt: terms of the order, knowledge, and failure to comply, after which wilfulness is inferred unless rebutted

Court orders

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  1. 1.The respondent's application dated 20 April 2022 seeking stay of further proceedings is dismissed
  2. 2.The respondent's officials - Ms. Joyce Macharia (CEO), Mr. Xavi Selga (Managing Director), Japheth Ngetich (General Manager) and John Mwendwa (Human Resource Director) - are cited for contempt of court for disobeying the judgment dated 26 April 2017 and orders of 27 July 2021
  3. 3.The respondent is directed to comply with the judgment/decree and release to the claimant the interest on Kshs. 3,450,508 as per the orders of 27 July 2021 forthwith, failing which the cited officials shall appear before the court at Nakuru Law Courts on June 29, 2022 at 9.00 a.m. to show cause why they should not be punished for contempt

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12; section 12(3)(viii)
  • Judicature Actsection 5
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of Kenya 2010Article 159(2)
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Lucy Waithera Kimanga & 2 Others vs John Waiganjo Gichuri
    [2015] eKLR
  • Samuel M. N. Mweru & others v National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; section 5 of the Judicature Act (contempt jurisdiction)

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, "Kenya Union of Commercial Food and Allied Workers v Almasi Beverage Limited (Cause 87 of 2016) [2022] KEELRC 1481 (KLR)", Case Analysis (2022). Not stated in judgment (ELRC Nakuru, contempt and stay applications dated 25 March 2022 and 20 April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1481/eng@2022-06-02

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