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ELRCPartially AllowedBungoma ELRC Claim No 30 of 2021 (Notice of Motion dated November 18, 2022)· [2023] KEELRC 400 (KLR)

Saina v Kaimosi Tea Estate Limited (Cause 30 of 2021) [2023] KEELRC 400 (KLR)

Employment and Labour Relations Court
16 February 2023
3,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court paused collection of an award against Kaimosi Tea Estates, but only after the company deposited the full amount in court.

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 Bungoma (JW Keli, J) on a notice of motion dated November 18, 2022 in which Kaimosi Tea Estates Limited, the respondent in the main claim, sought stay of execution of the judgment delivered on October 27, 2022 by the same court, pending an intended appeal to the Court of Appeal. The application was brought under sections 3 and 17(1) of the Employment and Labour Relations Court Act, rule 5(2)(b) of the Court of Appeal Rules 2022 and rule 17(1)(8) of the ELRC (Procedure) Rules 2016; the court identified Order 42 rule 6 of the Civil Procedure Rules as the substantive provision governing stay pending appeal. The applicant pleaded that the claimant had no known source of income or financial stability and would be unable to refund the decretal sum of KES 82,628.85 if the appeal succeeded, and that the application was made without delay. The claimant opposed, contending that the burden of proving inability to refund lay on the applicant. Applying the shift-of-burden principle in National Industrial Credit Bank v Wasike, the court found the claimant's reply evasive and held that inability to refund had been proved on a balance of probabilities. Readiness to furnish security satisfied the second limb of Order 42 rule 6(2). The court rejected submissions on the arguability of the appeal as irrelevant at trial-court level. Applying Butt v Rent Restriction Tribunal, the court granted a conditional stay of execution, requiring the entire decretal sum to be deposited in court within 30 days failing which the stay would stand automatically vacated, and awarded costs of the application to the claimant/respondent.

Key legal issues

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01

Substantial loss and unreasonable delay under Order 42 rule 6(2)(a)

Holding

The applicant proved on a balance of probabilities that substantial loss would result because the claimant had no known source of income or financial ability to refund the decretal sum, and the application was filed without unreasonable delay

Reasoning

The applicant specifically pleaded that the claimant had no known source of income. On the authority of National Industrial Credit Bank v Wasike, the evidential burden then shifted to the respondent to disclose her means. The respondent's reply was evasive and did not demonstrate ability to refund. The court therefore found substantial loss established. The judgment having been delivered on October 27, 2022 and the application filed on November 21, 2022, there was no unreasonable delay.

p. 6
02

Security for due performance under Order 42 rule 6(2)(b)

Holding

The applicant satisfied the second limb by expressing readiness and willingness to furnish security as the court may order

Reasoning

Relying on Exclusive Mines Limited v Ministry of Mining, the court upheld the principle that an applicant for stay should, in good faith, offer or propose security for due performance of the decree. The supporting affidavit of Sospeter Angira stated the applicant's readiness to provide security, satisfying the second limb of Order 42 rule 6(2).

p. 7
03

Whether arguability of the intended appeal is relevant to stay before the trial court

Holding

Arguability of the appeal is irrelevant in an application for stay of execution in the trial court

Reasoning

The court found that submissions on whether the intended appeal was arguable amounted to an attempt to re-open the hearing. Such a criterion belongs to applications under rule 5(2)(b) of the Court of Appeal Rules before the appellate court, not to an application for stay before the court appealed from, which is governed by Order 42 rule 6 of the Civil Procedure Rules.

p. 7

Legal principles established

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  • Once an applicant pleading specificity states that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he or she has
  • An applicant for stay should, as a sign of good faith, offer or propose security for the performance of the decree
  • The discretion on stay should be exercised so as not to prevent an appeal; if there is no overwhelming hindrance a stay must be granted so the appeal is not rendered nugatory

Court orders

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  1. 1.An order of stay of execution of the judgment and/or decree of the court dated October 27, 2022 in Bungoma ELRC Claim No 30 of 2021 Joseph Kipyegon Saina v Kaimosi Tea Estates Limited pending the filing, hearing and determination of the intended appeal to the Court of Appeal
  2. 2.Conditional upon the entire decretal amount of KES 82,628.85 being deposited in court within 30 days of the ruling, failing which the order of stay shall stand automatically vacated
  3. 3.Costs of the application to the respondent/claimant

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court ActSection 17(1)
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1)(8)
  • Civil Procedure RulesOrder 42 rule 6
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 164(3)
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (15)

  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & another
    Nairobi Civil Application No 238 of 2005 (UR), as cited in Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa [2016] eKLR
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No Nai 15 of 1990 (KLR)
  • James Wangalwa & another v Agnes Naliak Chesoto
    High Court Misc. Application No 42 of 2012
  • Machira t/a Machira & Co Advocates v East African Standard (No 2)
    (2002) KLR 63
  • Equity Bank Limited v Taiga Adams Company Limited
    2006 eKLR
  • Kenya Shell Limited v Kibiru
    [1986] KLR 410
  • Mohammed Salim T/A Choice Butchery v Nasserpurial Memon Jamat
    (2013) eKLR
  • M/S Portreiz Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1997
  • Kenya Hotel Properties Limited v Willesden Properties
    Civil Application No Nai 322 of 2006
  • Giafranco Mannthi & Another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • Exclusive Mines Limited & another v Ministry of Mining & 2 others
    (2015) eKLR
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa
    [2016] eKLR
Jurisdiction invoked
Sections 3 and 17(1) of the Employment and Labour Relations Court Act, Rule 17(1)(8) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 42 rule 6 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, "Saina v Kaimosi Tea Estate Limited (Cause 30 of 2021) [2023] KEELRC 400 (KLR)", Case Analysis (2023). Bungoma ELRC Claim No 30 of 2021 (Notice of Motion dated November 18, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/400/eng@2023-02-16

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