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ELRCDismissedNotice of Motion dated 21st February 2024 (in ELRC Cause, Award delivered 6th July 2022)· [2024] KEELRC 1292 (KLR)

Changawa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2024] KEELRC 1292 (KLR)

Employment and Labour Relations Court
27 May 2024
JGJacob Gakeri
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to pause enforcement of an employment award against Getrude's Children Hospital because the hospital delayed nine months and offered no security.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Gakeri J) determined the Respondent (Getrude's Children Hospital)'s Notice of Motion dated 21st February 2024 seeking a stay of execution of the Court's Award of 6th July 2022 in favour of the Claimant, pending the hearing and determination of an appeal, Nairobi CA No. E708 of 2023. The application was triggered by the Claimant taking out and serving warrants of execution on 16th February 2024 despite the pendency of the appeal. The Claimant opposed the motion as an abuse of process, an attempt to re-litigate a stay application dismissed by a ruling of 8th May 2023, and noted the application was filed nearly two years after judgment. The court traced the litigation history, including the dismissed review and earlier stay application, and identified a single issue: whether the motion was merited. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court held that the conditions are conjunctive. It found no substantial loss had been demonstrated (a finding unchanged since the earlier ruling), that a delay of more than nine months of inactivity between May 2023 and February 2024 was inordinate, and that the applicant had offered no security for the due performance of the decree. Concluding that the threshold was not met, the court dismissed the Notice of Motion dated 21st February 2024 with costs on 27th May 2024.

Key legal issues

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01

Whether the applicant satisfied the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed on substantial loss, inordinate delay and security

Reasoning

The court found that no substantial loss had been demonstrated (a finding already made in the earlier ruling of 8th May 2023); the applicant took no step between May 2023 and February 2024, a delay of over 9 months which was inordinate; and no offer of security was made in the grounds or supporting affidavit. Since the conditions are conjunctive, failure on all three grounds meant the discretion could not be exercised in the applicant's favour.

p. 6

Legal principles established

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  • The conditions in Order 42 Rule 6(2) for stay of execution pending appeal are conjunctive and all must be satisfied
  • The applicant for stay must volunteer an offer of security; absence of an offer may defeat the application

Court orders

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  1. 1.The Notice of Motion dated 21st February, 2024 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 159, 159(2)(d), 162(2), 164(3)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(i) and (viii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Civil Procedure Rules, 2010Order 42 Rule 6(1), 6(2); Order 21 Rule 1; Order 41 Rule 4 (as referred in Equity Bank quote)
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (11)

  • Obadiah Mugambi v Joyce Ncoro
    [2021] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services & 4 others
    [2015] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Global Tours and Travels Ltd
    HCWC No. 43 of 2000
  • Kenya Shell Ltd v Kibiru & another
    (1986) KLR 410
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
  • Mutahi Kiranga v Margaret Waweru & another
    [2015] eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 others
    Civil Appeal No. 291 of 1997
  • Equity Bank Ltd v Taiga Adams Co. Ltd
    [2006] eKLR
Jurisdiction invoked
Articles 159, 162(2) and 164(3) of the Constitution; Section 12(3)(i) and (viii) of the Employment and Labour Relations Court Act 2011; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Changawa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2024] KEELRC 1292 (KLR)", Case Analysis (2024). Notice of Motion dated 21st February 2024 (in ELRC Cause, Award delivered 6th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1292/eng@2024-05-27

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