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ELRCPartially AllowedMiscellaneous Application (stay of execution pending appeal) arising from Kericho CM ELRC No. E007· [2023] KEELRC 1614 (KLR)

Kingdom Bank Limited v Kirui (Miscellaneous Application E001 of 2023) [2023] KEELRC 1614 (KLR)

Employment and Labour Relations Court
4 July 2023
3,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court let an employer appeal late, but only after depositing the full judgment amount in a joint bank account within 30 days.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kericho determined a Notice of Motion dated 14th March 2023 by Kingdom Bank Limited, the unsuccessful defendant (as counterclaimant) in Kericho CM ELRC No. E007, in which C. Olubustsa (CM) had on 7th February 2023 awarded Collins Kiptoo Kirui Kshs 756,000 for unfair termination with interest and costs. The applicant sought stay of execution of the judgment and decree pending appeal, and leave to appeal out of time under Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. It explained the delay by the late supply of the certified judgment (received 28th February 2023), asserted substantial loss because the claimant allegedly could not refund the decretal sum, and offered a bank guarantee as security. The respondent opposed, arguing no decree had been extracted so there was no risk of execution, that the burden of proving inability to refund lay on the applicant, that no draft memorandum of appeal was annexed, and that the application was delayed. Counsel filed written submissions citing the familiar extension-of-time and stay jurisprudence, including Thuita Mwangi v Kenya Airways and RWW v EKW. Allowing the application, Justice Hellen Wasilwa held the applicant should not be denied the right of appeal given its willingness to provide security, and granted leave to appeal out of time within 7 days, on condition that the applicant deposit the entire decretal sum in a joint interest-earning account of counsel within 30 days; in default the orders would stand vacated and execution could proceed. Costs were to abide the outcome of the appeal.

Key legal issues

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01

Whether leave should be granted to file the appeal out of time under Section 79G of the Civil Procedure Act

Holding

Leave granted; the delay of about 21 days after the lapse of the 30-day period was explained by the delay in obtaining the certified copy of the judgment and was not inordinate.

Reasoning

The Court noted the explanation that the certified copy of the judgment was supplied on 28th February 2023 and the application filed on 22nd March 2023. Weighing the applicant's right of appeal against the respondent's interest, and taking into account the applicant's offer of security, the Court exercised its discretion to enlarge time on conditional terms.

p. 7
02

Whether stay of execution pending appeal should be granted under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay granted on condition that the applicant deposits the entire decretal sum in a joint interest-earning account within 30 days, failing which the stay lapses and execution may proceed.

Reasoning

The Court balanced the applicant's undoubted right of appeal against the respondent's right to the fruits of the judgment. Accepting the applicant's offer of security, the Court fashioned a conditional stay securing the decree-holder's position, while making the orders vacate automatically in default of compliance.

p. 7

Legal principles established

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  • An intending appellant who is willing to furnish security should not be denied the right of appeal; leave to appeal out of time may be granted on terms as to security.

Court orders

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  1. 1.Leave granted to the Applicant to file the appeal out of time, within 7 days from the date of the ruling
  2. 2.Applicant to deposit the entire decretal sum in an interest-earning account held in the joint names of counsels on record within 30 days
  3. 3.In default of the deposit, the orders are vacated and execution may proceed
  4. 4.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 3B, 79G
  • Civil Procedure Rules, 2010Order 42 Rule 6(2); Order 22 Rule 22
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment ActSection 44(c)
  • Employment and Labour Relations ActSection 13
  • Employment and Labour Relations Court (Procedure) RulesRule 32

Cases cited (13)

  • Thuita Mwangio V Kenya Airways Limited
    [2003] eKLR
  • Stanley Kiplangat Rono and another V William Kiprotich Cherus
    [2021] eKLR
  • RWW Vs EKW
    [2019] eKLR
  • Century Oil Trading Company Limited V Kenya Shell Limited Nairobi
    [2008] eKLR
  • Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    [2018] eKLR
  • Egal Mohamed Osman vs. Inspector General of Police & 3 Others
    [2015] eKLR
  • The Management Committee of Makondo Primary School and Another v Uganda National Examination Board, HC Civil Misc Application No.18 of 2010
    null
  • Owners of Motor vessel 'Lilian S' V Caltex Oil (Kenya) Limited
    null
  • Wisely Patrick Simasi & 8 others V Lmanthe Hygiene Food
    [2015] eKLR
  • Caneland Ltd and Others vs Delphis Bank Ltd, Nai. C.A No. 344 of 1999
    null
  • Peter Mutuku Nthuku V Perimeter Protection Limited
    [2019] eKLR
  • Thomas N Nguti & 196 others V Kenya Airways Corporation
    [2021] eKLR
  • Kennedy O. Okinyi versus Grain Bulk Handlers Ltd, ELRCC No. 199 of 2013
    null
On appeal from
Magistrates' Court (ELRC), Kericho
Kericho CM ELRC No. E007
Jurisdiction invoked
Sections 3A & 3B of the Civil Procedure Act; Order 42 Rule 6(2) and Order 22 Rule 22 of the Civil Procedure Rules, 2010; Section 79G Civil Procedure Act (extension of time); Article 159(2)(d) of the Constitution

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, "Kingdom Bank Limited v Kirui (Miscellaneous Application E001 of 2023) [2023] KEELRC 1614 (KLR)", Case Analysis (2023). Miscellaneous Application (stay of execution pending appeal) arising from Kericho CM ELRC No. E007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1614/eng@2023-07-04

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