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ELRCPartially Allowed· [2024] KEELRC 299 (KLR)

Ogutu v Maya Duty Free Limited (Employment and Labour Relations Cause 13 of 2020) [2024] KEELRC 299 (KLR)

Employment and Labour Relations Court
16 February 2024
3,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court paused execution of a judgment, but only if the losing employer deposits KShs 800,000 and files its appeal within 30 days.

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 (Anna Ngibuini Mwaure, Judge) delivered virtually in Nairobi on 16th February 2024 on a Notice of Motion dated 24th August 2023. The Respondent/Applicant, the losing party in an ELRC judgment delivered by Hon. Lady Justice Maureen Onyango on 7th November 2022 awarding the Claimant Kshs 1,128,376 plus costs (later taxed at Kshs 194,838.36), sought an interim stay of execution pending a intended appeal, it having lodged a Notice of Appeal dated 21st November 2022 and since filed its appeal as Civil Appeal No E734 of 2023 in the Court of Appeal. The Claimant/Respondent opposed, arguing inordinate delay of about nine months, defective notice under Rules 75 and 77 of the Court of Appeal Rules, failure to demonstrate substantial loss or security, and entitlement to the fruits of judgment. The court framed the inquiry under Order 42 Rule 6(2) of the Civil Procedure Rules and Butt v Rent Restriction Tribunal: delay, substantial loss, security and sufficient cause. It held the delay was reasonably explained by the time taken to obtain certified proceedings, applying Njoroge v Kimani. On substantial loss, applying National Industrial Credit Bank v Wasike, it found the evidential burden had shifted to the claimant, who gave no evidence of ability to refund the decretal sum. The applicant's willingness to deposit Kshs 800,000 as earlier directed by the court on 2nd October 2023, and its attached draft Memorandum of Appeal, satisfied security and sufficient cause. The court granted an interim stay conditional on filing the record of appeal and depositing Kshs 800,000 in a joint interest-earning account within 30 days, failing which the orders lapse and execution proceeds.

Key legal issues

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01

Inordinate delay in filing the stay application

Holding

The approximately 9-month delay was reasonably explained by the time taken to obtain certified copies of the judgment and proceedings, supported by a Certificate of Delay.

Reasoning

The application was filed on 24th August 2023, about 9 months after the judgment of 7th November 2022. The applicant attributed the delay to the registry, having applied for certified copies in November 2022 and made follow-ups; the proceedings were ready on 8th May 2023 but the file had been forwarded for the taxation ruling. Relying on Njoroge v Kimani, the court held delay in obtaining certified proceedings cannot be faulted on the applicant.

p. 6
02

Substantial loss

Holding

The applicant demonstrated a possibility of substantial loss since the claimant did not avail evidence of ability to refund the decretal sum if the appeal succeeds.

Reasoning

Applying National Industrial Credit Bank Ltd v Wasike, the court held that once an applicant expresses a reasonable fear that the respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show his resources. The claimant adduced no evidence that he could refund the sum, and there was evidence of proclamations of the applicant's goods, showing real danger of execution.

p. 6
03

Security and sufficient cause

Holding

The applicant's willingness to deposit Kshs 800,000 as directed by the court on 2nd October 2023, together with its attached draft Memorandum of Appeal, satisfied the security and sufficient-cause conditions.

Reasoning

The court had on 2nd October 2023 directed that the application could be compromised by depositing Kshs 800,000 in a joint interest-earning account; the applicant confirmed on 30th October 2023 it was ready to open the account, showing willingness to provide security. The attached draft Memorandum of Appeal and evidence of attempted proclamations demonstrated seriousness and a real danger of execution before the appeal.

p. 7

Legal principles established

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  • Delay attributable to waiting for certified proceedings and judgment cannot be faulted on the applicant and may be excused as reasonably explained.
  • Once an applicant for stay expresses a reasonable fear that the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his resources.
  • Security under Order 42 rule 6 is meant to guarantee due performance of the decree, not to punish the judgment debtor.
  • Mere filing of a Notice of Appeal is not enough to establish sufficient cause under Order 42 rule 6; a Memorandum of Appeal provides cogent evidence of sufficient cause.

Court orders

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  1. 1.Interim stay of execution of the judgment and decree of the Employment and Labour Relations Court issued on 7th November 2022 pending the intended appeal
  2. 2.The Respondent/Applicant given 30 days to file the record of appeal
  3. 3.The Respondent/Applicant to deposit part of the security being Kshs 800,000 in a joint interest earning account between the two respective law firms within 30 days
  4. 4.In default of compliance within 30 days, the stay orders cease to be operational and execution will proceed forthwith

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (including 6(2) and 6(4))
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Court of Appeal RulesRules 75 and 77
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (10)

  • Harun Gikonyo & another v Martha Wachuka Kamau
    [2022] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Ena Investment Limited v Benard Ochau Mose & 2 Others
    (2022) eKLR
  • Charles Mwangi Kiiru v Boniface Maina Gichomo & Joseph Mwangi Thuo
    [2021] eKLR
  • Njoroge v Kimani (Civil Application Nai E049 of 2022)
    [2022] KECA 1188 (KLR)
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike and Another
    (2006) eKLR
  • Arun C Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates & 2 Others
    (2014) eKLR
  • OGM (Suing as the father of KGW) v FG & another
    [2020] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto (Bungoma High Court Misc Application No 42 of 2011)
  • Gitarau Peter Munya v Dickson Mwenda Kithinji (Supreme Court Application No. 5 of 2014)
    eKLR
On appeal from
Employment and Labour Relations Court
Judgment delivered 7th November 2022 (Hon. Lady Justice Maureen Onyango)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (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, "Ogutu v Maya Duty Free Limited (Employment and Labour Relations Cause 13 of 2020) [2024] KEELRC 299 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/299/eng@2024-02-16

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