Kenya Union of Doestic, Hotels, Educaitonal Institutions and Hospital Workers v Univerity Council, Technical University of Mombasa (Cause E002 of 2021) [2023] KEELRC 2557 (KLR)
The bottom line
#A Kenyan court refused to fully block payment of a Kshs 25.9 million gratuity award, ordering the university to deposit half into a joint account pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay under order 42 rule 6 were satisfied
The conditions were not satisfied; only a conditional stay with deposit of 50% of the decretal sum was warranted.
The court held that moving without delay is not the sole condition. The respondent committed under the CBA to pay gratuity at end of employment and should have secured the benefit monthly from wages; lack of budgetary provision does not give it good standing for a stay. Substantial loss was not demonstrated merely by asserting the award is high, and a Notice and Memorandum of Appeal without filing details amounts only to an intention to appeal.
Whether the respondent's status as a public institution constitutes adequate security
No; the respondent was required to furnish security by depositing half the decretal sum.
Relying on Samvir Trustee Limited v Guardian Bank Limited, the court emphasised the sanctity of a judgment and that a successful party is prima facie entitled to the fruits of the judgment. The court must balance ensuring an appeal is not rendered nugatory against not impeding the successful party. Being a government entity does not by itself satisfy the security requirement.
Substantial loss
Substantial loss, the cornerstone for granting stay, was not established.
Applying Kenya Shell Ltd v Kibiru, the court noted that substantial loss in its various forms is the cornerstone for granting stay and that without evidence thereof it is difficult to keep successful parties out of their money. The respondent merely asserted the award was colossal and would cripple operations, without showing what was being preserved or why the grievants could not repay if the appeal succeeded.
Legal principles established
#- The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while a successful party retains a legitimate expectation to enjoy the fruits of the judgment
- A public institution's status is not by itself sufficient to avoid furnishing security for a decretal sum
- An attachment of a Notice and Memorandum of Appeal without filing details constitutes only an intention to appeal
Court orders
#- 1.A conditional order of stay of execution of the judgment delivered on 29 June 2023 issued
- 2.Of the judgment sum of Kshs. 25,910,295.80 the respondent to deposit 50% into a joint interest-earning account held by the claimant and the respondent within 30 days, failing which the stay shall lapse
- 3.The claimant awarded costs of the application assessed at Kshs. 50,000
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Doestic, Hotels, Educaitonal Institutions and Hospital Workers v Univerity Council, Technical University of Mombasa (Cause E002 of 2021) [2023] KEELRC 2557 (KLR)", Case Analysis (2023). Application dated 14 July 2023 (arising from judgment delivered 29 June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2557/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.