Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition No E164 of 2022· [2023] KEELRC 2146 (KLR)

Makau v DIB Bank Kenya Limited (Petition E164 of 2022) [2023] KEELRC 2146 (KLR)

Employment and Labour Relations Court
21 September 2023
3,014 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer won a pause on paying a Kshs 20.2 million award, but only by agreeing to deposit the full amount in a joint bank account within 21 days.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi delivered by Nzioki wa Makau J on September 21, 2023, on a Notice of Motion dated June 27, 2023 in which the Respondent/Applicant sought stay of execution of the Court's judgment of June 14, 2023, in which the Petitioner was awarded Kshs 10 million general damages for constitutional violations and Kshs 10,200,000 being six months' salary compensation for unlawful termination. The Applicant, which had filed a Notice of Appeal on June 19, 2023, contended that the Petitioner was likely to execute, that the appeal would be rendered nugatory as the Petitioner could not refund the decretal sum if the appeal succeeded, and offered to deposit the award in an escrow account. The Petitioner opposed, questioning whether the firm of Marende & Nyaundi Advocates was properly on record, and asserting that the intended appeal was an afterthought with no draft memorandum attached. The Court framed three issues: representation, the stay threshold, and the relevance of a draft memorandum. It allowed the incoming firm on record on the strength of the consent, conditional on the firm foregoing costs. On stay, the Court found the application timeously brought, substantial loss likely given the large award and refund concerns, and the security limb satisfied by the offer of deposit. It held that a trial court need not assess the arguability of the intended appeal. The Court granted a conditional stay: the Respondent to deposit the entire decretal sum of Kshs 20,200,000 in a joint interest-earning account within 21 days, failing which the stay lapses on the 22nd day. No costs were awarded on the application.

Key legal issues

#
01

Whether the firm of Marende & Nyaundi Advocates was properly on record

Holding

Yes; the consent executed between the outgoing and incoming advocates satisfied Order 9 Rule 9, though the Court noted it was not a tidy approach and conditioned the representation on the incoming firm foregoing costs should the motion succeed.

Reasoning

The law envisages leave where judgment has been entered and another firm intends to take over. Here a consent was executed between the former advocate and the incoming advocate, filed with a Notice of Change of Advocates. The Court found this sufficient, albeit untidy, to effect the change post-judgment and allowed the firm on record.

p. 5
02

Whether the stay application met the Order 42 Rule 6 threshold

Holding

Yes; the application was made timeously (Notice of Appeal filed 5 days after judgment), substantial loss was demonstrated given the size of the award and doubts about refund capability, and the offer of security (deposit of the decretal sum) satisfied the second limb.

Reasoning

The Court found the application brought timeously and not diversionary. It accepted that the decretal sum of Kshs 20,200,000 was substantial and that the Applicant had offered security by proposing an escrow deposit. It directed the deposit of the entire decretal sum in a joint interest-earning account within 21 days, failing which the stay would lapse.

p. 5
03

Whether absence of a draft memorandum of appeal defeats a stay application

Holding

No; a trial court under Order 42 Rule 6 does not assess the merits of the intended appeal - that is for the Court of Appeal - and a notice of appeal suffices to treat the appeal as filed.

Reasoning

The Court accepted the Applicant's submission that assessing the prospects of the appeal lies within the precincts of the Court of Appeal and that the instant Court acts as a trial court on stay. It found the intended appeal was not a diversionary or delaying tactic, the Notice of Appeal having been filed 5 days after the decision.

p. 5

Legal principles established

#
  • A consent between the outgoing and incoming advocates, though untidy, suffices to bring an incoming firm on record post-judgment under Order 9 Rule 9 of the Civil Procedure Rules.
  • A trial court entertaining a stay application under Order 42 Rule 6 need not assess the arguability or prospects of the intended appeal; that is for the appellate court.
  • Stay of execution may be granted on condition that the entire decretal sum is deposited in an interest-earning account in the joint names of counsel for both parties.

Court orders

#
  1. 1.The firm of Marende & Nyaundi Advocates allowed to come on record for the Respondent/Applicant, conditional on foregoing any costs should their motion succeed.
  2. 2.Stay of execution of the judgment delivered on June 14, 2023 granted pending the intended appeal, on condition that the Respondent/Applicant deposits the entire decretal sum of Kshs 20,200,000 in an interest-earning account in the joint names of the Advocates for the Petitioner and Respondent within 21 days of the Ruling.
  3. 3.Should there be failure to deposit the sum due to the Respondent/Applicant's default or reasons wholly attributable to it, the stay to lapse on the 22nd day following the Ruling.
  4. 4.No costs awarded on the application.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2) and 6(4)
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (12)

  • S.K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • West Kenya Sugar Co Ltd v Jacob Wanja Weruga
    [2022] eKLR
  • UAM v MOA
    (Civil Appeal E033 of 2022) [2022] KEHC 15405 (KLR) (17 November 2022) (Ruling)
  • Ann Wanjiru Waigwa & another v Joseph Kiragu Kibarua
    [2009] eKLR
  • Joshua Kitonyi Ndambuki v Stellamaris Ndunge Yenge & Onesmus Muthuku Ndolo
    [2021] eKLR
  • Bonface Kariuki Wahome v Peter Nzuki Nyamai & another
    [2019] eKLR
  • Kellen Wangari Gitonga v Judith Majuma Matimbo
    [2022] eKLR
  • Nduhiu Gitahi & another v Anna Wambui Warugongo
    [1988] 2 KAR 621
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 others
    [2015] eKLR
  • In the Estate of Peter Walter Kowalczyk (Deceased)
    [2021] eKLR
  • James Mogaka v Kenya Commercial Bank Limited
    [2021] eKLR
  • Stephen Munene Njagi v Tharaka Nithi County Government & another
    [2018] eKLR
On appeal from
null
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal), invoked by the Respondent/Applicant

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Makau v DIB Bank Kenya Limited (Petition E164 of 2022) [2023] KEELRC 2146 (KLR)", Case Analysis (2023). Petition No E164 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2146/eng@2023-09-21

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