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ELRCPartially AllowedNotice of Motion arising from Chief Magistrates Court at Milimani, Chief Magistrates Employment and Labour Case No. 466 of 2019· [2022] KEELRC 1613 (KLR)

Bollore Transport & Logistics Ltd v Kidaha (Appeal E060 of 2022) [2022] KEELRC 1613 (KLR)

Employment and Labour Relations Court
28 July 2022
NMNzioki Wa Makau
2,949 words in judgment
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The bottom line

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Kenya's Employment Court paused collection of an employment award, but only after the employer deposits the full amount into a joint interest-earning account.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki Wa Makau J) on a notice of motion by Bollore Transport & Logistics Limited, the appellant, seeking stay of execution of the judgment and decree of Hon. A. N. Makau, Chief Magistrate, delivered on 28th April 2022 in Chief Magistrates Employment and Labour Case No. 466 of 2019, in which the claimant, Wyclifi Isasida Kidaha, was awarded sums following a finding of unlawful termination. The applicant argued that the appeal raised arguable grounds, that this was a money decree which the respondent would be unable to refund if the appeal succeeded, and offered security; it relied on Butt v Rent Restriction Tribunal and Benisa Limited v John Ngotho Maina to shift the evidential burden on refundability to the respondent. The respondent opposed, contending the application was brought under the wrong provisions, that no execution was imminent, and that the applicant had not proved substantial loss under Order 42 Rule 6(2); he relied on Congress Rental and Machira. The court held that although the respondent had not yet levied execution, he had initiated the process by a demand letter, and that the best course was to grant stay to prevent the appeal being rendered nugatory. It conditioned the stay on the entire decretal sum being deposited in an interest-earning account in the joint names of the parties' advocates within 14 days. The court also held it would be unconscionable to strike out a stay application merely because the ELRC (Procedure) Rules 2016 do not expressly mention stay pending appeal. Costs of the motion were ordered to abide the outcome of the appeal.

Key legal issues

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01

Whether the applicant satisfied the conditions for grant of stay of execution pending appeal, particularly substantial loss/nugatory appeal

Holding

Stay granted because execution had been initiated by a demand letter and refusal would render the appeal nugatory; conditional on deposit of the decretal sum

Reasoning

The court observed that although the respondent said execution had not begun, he had already sought payment through a demand letter, showing the process had been initiated. The court held that the best course was to grant stay to prevent the appeal being rendered nugatory, conditioned on the decretal sum being deposited in an interest-earning account in the joint names of the parties' advocates within 14 days.

p. 5
02

Whether the application was incompetent for being brought under the Civil Procedure Rules rather than the ELRC (Procedure) Rules 2016

Holding

The application was competent; the ELRC Rules, though not explicit, intend to permit stay pending appeal and striking out such an application would sacrifice justice to technicality

Reasoning

The respondent argued that Rule 17 of the ELRC (Procedure) Rules 2016 covers only interlocutory applications and temporary injunctions and does not provide for stay pending appeal. The court rejected this, holding that the intent of the Rules covers stay pending appeal and that striking out such applications for want of express words would be unconscionable and unjust.

p. 5

Legal principles established

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  • Where an applicant for stay expresses a reasonable fear that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to demonstrate the resources he has.
  • The ELRC Procedure Rules 2016, though not explicit on stay pending appeal, intend to allow such applications, and it would be unjust to strike out a stay application on that technicality.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Chief Magistrates Court at Milimani delivered on 28th April 2022 pending the hearing and determination of the Appeal
  2. 2.Stay granted on condition that the entire decretal sum be deposited in an interest earning account within 14 days, the account to be in the names of advocates for the parties
  3. 3.Costs of the motion to abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42 Rule 7(1)
  • Civil Procedure Rules, 2010Order XLI rule 4(2)(b)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17

Cases cited (7)

  • Amal Hauliers Limited v Abdulnasir Abubakar Hassan
    [2017] eKLR
  • Butt v Rent Restriction Tribunal
    (1972) KLR 417
  • Benisa Limited v John Ngotho Maina
    [2022] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
  • Directline Assurance Company Limited v Michael Njima Muchiri & Another
    [2020] eKLR
  • Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & Another (Garnishee)
    [2019] eKLR
  • Machira T/A Machira & Co. Advocates v East African Standard (No. 2)
    [2002] 2 KLR 63
On appeal from
Chief Magistrates Court at Milimani
Chief Magistrates Employment and Labour Case No. 466 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Chief Magistrates Court; application brought under Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016 and Order 42 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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Cite this brief

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Cite this brief

Caselaw, "Bollore Transport & Logistics Ltd v Kidaha (Appeal E060 of 2022) [2022] KEELRC 1613 (KLR)", Case Analysis (2022). Notice of Motion arising from Chief Magistrates Court at Milimani, Chief Magistrates Employment and Labour Case No. 466 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1613/eng@2022-07-28

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