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ELRCAllowedApplication dated 14/2/2023 in ELRC (Nairobi); appeal to be filed being Appeal No E855 of 2022· [2023] KEELRC 1709 (KLR)

Wa Mutinda v Municipal Council of Bomet & 3 others (Cause 214 of 2016) [2023] KEELRC 1709 (KLR)

Employment and Labour Relations Court
6 July 2023
MNMathews N. Nduma
563 words in judgment
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The bottom line

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The ELRC paused execution of a Kshs 3.48 million judgment against Bomet County, but only on condition the full amount is deposited within 45 days.

What this practically means

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Executive summary

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The County Government of Bomet, as respondent/applicant, moved the Employment and Labour Relations Court by notice of motion dated 14/2/2023 seeking stay of execution of the judgment delivered by Honourable Justice Nduma Nderi on 22 September 2022, in which the claimant was awarded Kshs 3,480,187. The applicant relied on the supporting affidavit of John Mark Langat, contending that a notice of appeal was filed timeously on 29/9/2022 and a memorandum of appeal on 9/12/2022; that the claimant had commenced execution; that the decretal sum was large and could not be refunded if paid, rendering the pending appeal (stated to have a high probability of success) nugatory; and that the applicant was willing to provide security. The claimant opposed, acknowledging the appeal but describing it as frivolous, stating he is a Senior Deputy Secretary at the Ministry of Education with 30 years of public service and not a man of straw, that he had been denied his salary since 2007, and proposing that any decretal sum be deposited in a joint interest-earning account. The court held it was in the interest of justice to grant the stay pending Appeal No E855 of 2022, on condition that the respondent deposits the entire decretal sum in a joint interest-earning account in the names of both firms of advocates within 45 days, failing which the stay lapses and execution may follow. The application was allowed on those terms.

Key legal issues

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01

Whether to stay execution pending appeal

Holding

Stay granted on condition that the entire decretal sum is deposited in a joint interest-earning account within 45 days, failing which the stay lapses and execution follows

Reasoning

The court considered the depositions and submissions of both parties. It found the interest of justice favoured preserving the decretal sum of Kshs 3,480,187 while the appeal (which the applicant asserts has a high probability of success) is determined, and adopted the claimant's own proposal of a joint interest-earning deposit as the security term, with an automatic lapse clause to protect the claimant from delay.

p. 2

Legal principles established

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  • Stay of execution pending appeal is granted in the interest of justice, conditional upon the judgment debtor depositing the decretal sum in a joint interest-earning account within a fixed period

Court orders

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  1. 1.Stay of execution of the judgment delivered on 22/9/2022 granted pending the hearing and determination of Appeal No E855 of 2022
  2. 2.The respondent/applicant to deposit the entire decretal sum of Kshs 3,480,187 in an interest earning account held jointly in the names of the advocates for the claimant and the advocates for the respondent within 45 days of the ruling
  3. 3.In default of deposit within 45 days, the order for stay of execution shall lapse and execution to follow
  4. 4.It is so ordered

Authorities

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Cases cited (1)

  • County Government of Bomet –vs- Ngei was Mutinda & 4 others
    Appeal No E855 of 2022
Jurisdiction invoked
Inherent interest-of-justice jurisdiction of the ELRC to stay execution of its own judgment pending appeal (the judgment sought to be stayed was delivered by Honourable Justice Nduma Nderi on September 22, 2022)

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, "Wa Mutinda v Municipal Council of Bomet & 3 others (Cause 214 of 2016) [2023] KEELRC 1709 (KLR)", Case Analysis (2023). Application dated 14/2/2023 in ELRC (Nairobi); appeal to be filed being Appeal No E855 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1709/eng@2023-07-06

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