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ELRCAllowedNot stated in judgment· [2023] KEELRC 3160 (KLR)

Osire v Mega Pack (K) Limited (Cause 66 of 2018) [2023] KEELRC 3160 (KLR)

Employment and Labour Relations Court
30 November 2023
2,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent, through Wachira Wanjiru & Company Advocates, moved the Employment and Labour Relations Court at Nakuru by notice of motion dated 28th August 2023 seeking stay of execution of the judgment dated 15th June 2023, which had declared the claimant's dismissal unfair and unlawful and awarded him Kshs.127,722 (salary in lieu of notice of Kshs.18,246 and compensation of Kshs.109,476), plus a certificate of service, costs and interest. The stay was sought pending an appeal to the Court of Appeal, a notice of appeal having been filed on 21st June 2023 and a record of appeal prepared and served. The respondent argued the appeal was arguable, that it would suffer substantial loss as the claimant had no demonstrated means of refunding the decretal sum, that the application was made timeously, and that it was willing to furnish security. The claimant opposed, describing the application as an abuse of process, asserting he was employed at a monthly salary of Kshs.140,000 per a letter from Prime Concepts Packaging, and contending the decretal sum was meagre and the application delayed. Framing three issues, the court applied Order 42 rule 6(2) of the Civil Procedure Rules, distinguishing rule 5(2)(b) of the Court of Appeal Rules. It found no undue delay; held payment of a lawful decree is not substantial loss but that the claimant, producing only a letter of employment without pay-slip or bank statement, failed to prove liquidity to refund if the appeal succeeded; and accepted the respondent's offer of security. The court allowed the application, issuing a conditional stay of execution and ordering the decretal sum plus costs be deposited in a joint interest-earning account within 30 days, failing which the stay lapses; costs of the application to abide the appeal. The ruling is dated 30th November 2023 and was delivered virtually at Nakuru by David Nderitu, Judge.

Key legal issues

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01

Whether the application for stay of execution was filed without undue delay

Holding

The court found no undue delay, the respondent having explained the steps taken between judgment and filing.

Reasoning

The judgment was delivered on 15th June 2023, a notice of appeal was filed on 21st June 2023, and the stay application was filed on 30th August 2023. The court held that each cause must be considered on its own merits and that the respondent's explanation of steps taken towards the appeal in the interim sufficed to show the application was made without undue, inordinate or unreasonable delay.

p. 5
02

Whether the respondent would suffer substantial loss if stay was denied

Holding

The decretal sum of Kshs.127,722 was neither colossal nor substantial; payment of a lawful decree is not itself a loss, but the claimant's failure to prove ability to refund if the appeal succeeded weighed in favour of stay.

Reasoning

The court held that settling a lawful decree should not be viewed as substantial loss in itself. However, if the decretal sum is paid and the appeal succeeds, the court must consider whether the claimant can refund it; otherwise the appeal would be rendered nugatory. The claimant, who alleged a monthly salary of Kshs.140,000, produced only a letter of employment without a pay-slip or bank statement, and thus failed to discharge the shifted burden of proving liquidity.

p. 5
03

Whether security for due performance of the decree was offered

Holding

The respondent's stated readiness and willingness to comply with orders on security demonstrated goodwill and good faith, satisfying the third condition.

Reasoning

The respondent deposed that it was ready and willing to provide security for due performance of the decree or as the court might order. The court accepted this as demonstrating goodwill and good faith, and fashioned a conditional stay requiring the decretal sum plus costs to be deposited in a joint interest-earning account within 30 days, failing which the stay would lapse.

p. 5

Legal principles established

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  • The conditions for stay of execution in the ELRC are those in Order 42 rule 6(2): no undue delay, substantial loss, and security for due performance of the decree.
  • Where it is alleged that the decree-holder is impecunious, the burden of proving liquidity shifts to the decree-holder.

Court orders

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  1. 1.An order for stay of execution be and is hereby issued pending the hearing and determination of the appeal.
  2. 2.The respondent shall deposit the entire decretal sum plus costs in a joint interest earning account in the joint names of its lawyers and that of the lawyers for the claimant.
  3. 3.The account shall be opened and the monies deposited within 30 days from the date of the ruling, failure of which the stay orders shall lapse.
  4. 4.The costs of the application shall abide with the outcome of the appeal.

Authorities

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Legislation

  • Judicature ActSection 10
  • High Court (Practice and Procedure Rules)Rule 3
  • Employment and Labour Relations Court ActSections 3 and 17(1)
  • Court of Appeal Rules 2022Rule 5(2)(b)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1)(8)
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (7)

  • Joseph Gitahi & Another V Pioneers Holdings (A) Limited & 2 Others
    (2009) eKLR
  • Kenya Airways Limited V Kenya Aviation Workers Union
    (2020) eKLR
  • Stanley Karanja Wainaina & Another V Ridon Anyangu Mutubwa
    (2016) eKLR
  • International Laboratory for Research on Animal Diseases
    (1990) KLR 403
  • Butt v Rent Restriction Tribunal
    (1979) KLR
  • Exclusive Mines Limited & Another V Ministry of Mining & 2 Others
    (2015) eKLR
  • National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another
    Nairobi Civil Application No. 238 of 2005
Jurisdiction invoked
Section 3 and 17(1) of the Employment and Labour Relations Court Act; Order 42 rule 6(2) of the Civil Procedure Rules

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, "Osire v Mega Pack (K) Limited (Cause 66 of 2018) [2023] KEELRC 3160 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3160/eng@2023-11-30

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