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ELRCPartially AllowedCause No 989 of 2018· [2024] KEELRC 2146 (KLR)

Muliango v Masaka (Cause 989 of 2018) [2024] KEELRC 2146 (KLR)

Employment and Labour Relations Court
30 July 2024
JGJACOB GAKERI
1,160 words in judgment
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The bottom line

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A Kenyan employment court released deposited judgment funds to a winning claimant because the losing party never actually filed its appeal.

What this practically means

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Executive summary

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The Decree Holder/Claimant filed a Notice of Motion dated 3rd April 2024 seeking release of Kshs 309,567.31 to Omongo Gatune & Co. Advocates, being part of Kshs 323,138.51 deposited in court on 17th May 2019 as security for judgment pursuant to a court direction. Judgment had been entered in the Claimant's favour on 29th May 2023 for Kshs 152,692.31, and party-and-party costs were taxed at Kshs 156,875.00, totalling Kshs 309,567.31. The Respondent opposed release, deposing that it had filed a Notice of Appeal and requested typed proceedings, that a reference against the taxing officer's decision was pending, and that releasing the funds would render its intended appeal nugatory. The parties agreed the application be determined on the documents on record. The sole issue was whether the motion was merited. The court noted that the reference dated 26th March 2024 had already been found unmerited for failure to demonstrate excessiveness or error of principle. As to the intended appeal, although a Notice of Appeal and request for proceedings existed, no record of appeal had been lodged in the Court of Appeal and there was no application for stay of execution. Applying the Court of Appeal's holding that an appeal is not instituted until the record of appeal is lodged and fees paid (Yani Haryanto v E.D. & F. Man (Sugar) Ltd; HA v LB), the court held no appeal was pending. It further observed the Respondent had given no cogent reasons for the delay in filing the appeal, and declined to comment on the arguability of an appeal against a judgment previously subject to review. The court allowed the motion and ordered release of Kshs 309,567.31, with each party bearing their own costs.

Key legal issues

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01

Whether security for judgment deposited in court should be released to the decree holder where no appeal is pending

Holding

The application was merited; the sum of Kshs 309,567.31 covering the decretal sum and taxed costs was ordered released to the Claimant's advocates because no appeal was pending and no stay application existed.

Reasoning

The court found that although the Respondent filed a Notice of Appeal and requested typed proceedings, no record of appeal had been lodged in the Court of Appeal, and per Yani Haryanto an appeal is only instituted when the record is lodged. The Respondent gave no cogent reasons for the delay in filing the appeal, and there was no application for stay of execution; hence release of the funds would not render any appeal nugatory.

p. 2
02

Status of the reference against the taxing officer's decision

Holding

The reference dated 26th March 2024 had already been found unmerited, so it did not bar release of the funds.

Reasoning

The Respondent relied on a pending reference challenging taxation, but the court noted it had already dismissed that reference because the Applicant failed to demonstrate excessiveness of the award or any error of principle; consequently it afforded no ground to withhold the security.

p. 2

Legal principles established

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  • An appeal is not instituted in the Court of Appeal until the record of appeal is lodged and fees paid; a Notice of Appeal alone does not institute an appeal.

Court orders

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  1. 1.The sum of Kshs 309,567.31 be released to Omongo Gatune & Co. Advocates being part of the Kshs 323,138.51 deposited as security for judgment
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSections 12, 20
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(3), (5), (6)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (2)

  • Yani Haryanto v E.D. & F. Man (Sugar) Ltd
    Civil Appeal No 122 of 1992
  • HA v LB
    [2022] eKLR
Jurisdiction invoked
Sections 12 and 20 of the Employment and Labour Relations Court Act, 2011 and Rules 17(3), (5) and (6) 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, "Muliango v Masaka (Cause 989 of 2018) [2024] KEELRC 2146 (KLR)", Case Analysis (2024). Cause No 989 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2146/eng@2024-07-30

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