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ELRCPartially AllowedNot stated in judgment (arises from Eldoret CMCC ELRC No. 59 of 2018)· [2023] KEELRC 1702 (KLR)

Wareng High School v Sanga (Miscellaneous Application E007 of 2023) [2023] KEELRC 1702 (KLR)

Employment and Labour Relations Court
6 July 2023
MOMaureen Onyango
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a public school to appeal late and stop debt enforcement without paying any deposit, because the Government would ultimately foot the bill.

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 Eldoret (Maureen Onyango, J) on a Notice of Motion dated 13th February 2023 seeking stay of execution of the judgment and decree in Eldoret CMCC ELRC No. 59 of 2018 delivered on 16th December 2022, pending the Applicant's appeal to the High Court, together with leave to appeal out of time. The application was supported by the affidavit of State Counsel Edna Tigoi. The Respondent opposed it, contending that the Applicant's counsel was indolent in failing to diarize the judgment date, that no appeal had been lodged, that no substantial loss had been demonstrated, and that no security had been offered. At directions, the Respondent indicated willingness to allow the application only upon deposit of the decretal sum in a joint interest-earning account, which the Applicant, a public day school dependent on government grants, said it could not afford. The court framed a single issue: whether stay could be granted without the deposit. Applying Order 42 rule 6(2) of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal [1979], and invoking Order 42 Rule 8 exempting the Government from furnishing security, the court held that the Respondent would suffer no prejudice since any liability would ultimately be met by the Government of Kenya, against whom execution requires court authorization. The court granted the application in terms of prayers (c) and (d): leave to file the appeal out of time and stay of execution pending judgment in the appeal, with costs in the cause.

Key legal issues

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01

Whether stay of execution can be granted without the Respondent's demanded deposit of the decretal sum

Holding

Yes. Although Order 42 rule 6(2) ordinarily requires security, the Applicant, a public school defended by the Attorney General, is exempt from furnishing security under Order 42 Rule 8, and execution against the Government requires court authorization; the Respondent will suffer no prejudice.

Reasoning

The court applied Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal principles, which require substantial loss, no unreasonable delay, and security as the court orders. The purpose of security is to protect the decree holder's enjoyment of the judgment. Because the Applicant is a government-funded public school whose liability, if any, would be met by the Government against whom execution can only issue upon court authorization, demanding a cash deposit would serve no protective purpose and would render the appeal nugatory.

p. 3

Legal principles established

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  • The power to grant or refuse a stay of execution is discretionary and must be exercised so as not to prevent an appeal from being rendered nugatory; the court may, in special circumstances, waive or dispense with deposit of security where the decree is ultimately payable by the Government.

Court orders

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  1. 1.Stay of execution of the judgment and decree in Eldoret CMCC ELRC No. 59 of 2018 made on 16th December 2022 pending the hearing and final determination of the Applicant's appeal in the High Court
  2. 2.Leave granted to the Applicant to file appeal out of time
  3. 3.Stay of execution to operate pending judgment in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 8
  • Civil Procedure RulesOrder XLI Rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (1)

  • Butt vs Rent Restriction Tribunal
    [1979]
On appeal from
Eldoret Chief Magistrate's Court (ELRC No. 59 of 2018)
Eldoret CMCC ELRC No. 59 of 2018
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Wareng High School v Sanga (Miscellaneous Application E007 of 2023) [2023] KEELRC 1702 (KLR)", Case Analysis (2023). Not stated in judgment (arises from Eldoret CMCC ELRC No. 59 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1702/eng@2023-07-06

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