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ELRCPartially AllowedPetition No E199 of 2021· [2023] KEELRC 1094 (KLR)

Mang’ondi v Action Africa Help International (Petition E199 of 2021) [2023] KEELRC 1094 (KLR)

High Court of Kenya (claim arising from Employment and Labour Relations Court proceedings; appeal intended to the Court of Appeal)
25 April 2023
NMNzioke wa Makau
2,943 words in judgment
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The bottom line

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A Kenyan employer won a pause on paying a Kshs 13.6 million judgment, but only by paying Kshs 3 million upfront and depositing Kshs 10 million in a joint account.

What this practically means

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Executive summary

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This ruling of the High Court at Nairobi (Nzioke wa Makau J, April 25, 2023) determined a notice of motion by the Respondent/Applicant, an NGO employer that had lost an employment suit and been decreed to pay the Petitioner Kshs 13,673,641.96 in unpaid salaries, leave, pension and compensation for wrongful termination. The Applicant sought stay of execution and stay of the taxation of costs scheduled for July 5, 2022, pending its appeal to the Court of Appeal, invoking Order 42 Rule 6 of the Civil Procedure Rules and relying on Amal Hauliers and Focin Motorcycle to show substantial loss, absence of delay, and readiness to furnish security. The Petitioner opposed, relying on James Wangalwa, RWW v EKW, Absalom Dova, Mwaura Karuga, Gianfranco Manenthi and University of Nairobi authorities, arguing the Applicant showed no substantial loss and had avoided the security issue; in the alternative he sought release of two-thirds of the decretal sum, citing University of Nairobi v Mary M Cornelius. The Court applied a three-tier test - timeous application, non-frivolous appeal, and offer of security - and found the Applicant had satisfied it, describing it as a going concern willing to deposit security. It granted a conditional stay: payment of Kshs 3,000,000 to the Petitioner within 14 days and deposit of Kshs 10,000,000 in a joint interest-earning account within 30 days, failing which the stay would automatically vacate. Costs of the application were ordered to abide the outcome in the Court of Appeal.

Key legal issues

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01

Whether the Applicant met the three conditions for stay of execution under Order 42 Rule 6(2)

Holding

The Court found the Applicant timeous, its appeal not frivolous, and its offer of security sufficient, warranting conditional stay

Reasoning

The Court applied a three-tier test: timely application, non-frivolous intended appeal, and offer of security. The appeal was filed within time after judgment of June 15, 2022. The Applicant, an NGO dependent on donor funds, demonstrated willingness to provide security. The Court fashioned conditional relief: part payment of Kshs 3,000,000 and deposit of Kshs 10,000,000 in a joint interest-earning account, securing both the Petitioner's immediate needs and refundability should the appeal succeed.

p. 5
02

What security adequately secures due performance of the decree

Holding

A combination of part release of the decretal sum to the decree holder and deposit of the balance in a joint interest-earning account satisfies the security condition

Reasoning

Drawing on the parties' submissions, including authorities requiring security measured against the entire decree including costs and interest, the Court tailored security so the Petitioner receives funds immediately while the deposit preserves the decretal sum. Should the Respondent succeed on appeal, the Petitioner refunds the Kshs 3,000,000 and the successful party collects the deposited sum with accrued interest.

p. 6

Legal principles established

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  • Stay of execution pending appeal may be granted subject to conditions securing the decretal sum, balancing the appellant's right of appeal with the decree holder's right to the fruits of judgment

Court orders

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  1. 1.Stay of execution granted on conditions: the Respondent to pay Kshs 3,000,000/- to the Petitioner within 14 days
  2. 2.The Respondent to deposit Kshs 10,000,000/- in an interest-earning account in the joint names of the advocates of the Petitioner and the Respondent within 30 days
  3. 3.Failure to comply with the conditions through the fault of the Respondent will automatically vacate the stay
  4. 4.Costs of the application to abide the outcome in the Court of Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)

Cases cited (9)

  • Amal Hauliers Limited v Abdulnasir Abukar Hassan
    [2017] eKLR
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
  • University of Nairobi v Patrick Mwangi Ngunjiri
    {2022} eKLR
  • Absalom Dova v Tarbo Transporters
    [2013] eKLR
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 others
    [2015] eKLR
  • Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • University of Nairobi v Mary M Cornelius
    [2021] eKLR
Jurisdiction invoked
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, "Mang’ondi v Action Africa Help International (Petition E199 of 2021) [2023] KEELRC 1094 (KLR)", Case Analysis (2023). Petition No E199 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1094/eng@2023-04-25

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