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ELRCPartially AllowedKakamega ELRC Cause No. E004 of 2023 (Notice of Motion dated 22nd August 2024 consolidated with Notice of Motion dated 13th September 2024)· [2024] KEELRC 2240 (KLR)

Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Kima Mission Hospital (Employment and Labour Relations Cause E004 of 2023) [2024] KEELRC 2240 (KLR)

Employment and Labour Relations Court
20 September 2024
1,685 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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This ruling of the Employment and Labour Relations Court at Kakamega, delivered by J.W. Keli on 20th September 2024, determined two consolidated applications arising from a judgment of 6th June 2024 in which the court awarded three grievants of the KUDHEIHA claimant union damages for unfair termination and salary arrears against KIMA Mission Hospital, with 90 days allowed for compliance failing which interest would accrue. The hospital, having lodged a notice of appeal, filed a Notice of Motion dated 22nd August 2024 under Order 42 Rule 6 of the Civil Procedure Rules seeking stay of execution pending the intended appeal. Ex parte, the court granted temporary stay conditioned on deposit of the decretal amount into court within 15 days, a condition not complied with. The hospital then filed a further application dated 13th September 2024 seeking review of the deposit condition, proposing Kshs. 500,000 instead of the full decretal sum. The court found the review application overtaken by events since it concerned a temporary order and the substantive application was now being decided on merit. On the substantive application, the court found no unreasonable delay, applied the conditions in Order 42(6)(2) and the guidance in Butt v Rent Restriction Tribunal [1982] KLR 417, and held that stay should be granted so the intended appeal is not rendered nugatory, while protecting the decree holder's fruits of judgment. It rejected Kshs. 500,000 as insufficient security and granted stay conditional on deposit of the entire decretal sum within 30 days, failing which the stay stands automatically vacated. Costs of the application were awarded to the claimant.

Key legal issues

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01

Whether stay of execution pending intended appeal should be granted

Holding

Stay granted subject to deposit of the entire decretal sum as security within 30 days, failing which the stay lapses automatically

Reasoning

The court found no unreasonable delay, the application having been filed within the 90-day stay period granted in the judgment. Applying Order 42(6)(2) and Butt v Rent Restriction Tribunal, it held stay should issue so the appeal is not rendered nugatory, but the decree holder's fruits of judgment must be secured. The applicant's willingness to furnish security was noted, but the proposed Kshs. 500,000 was rejected as insufficient; full deposit was required.

p. 4
02

Whether the review application dated 13th September 2024 remained for determination

Holding

It was overtaken by events and determined under the substantive application of 22nd August 2024

Reasoning

The 13th September application sought substitution of the deposit condition in the temporary ex parte orders of 29th August 2024. The court found the order sought to be varied was temporary and interlocutory, and the substantive application was now being determined on merit, rendering the review application moot; it was therefore subsumed into the main application and decided therewith.

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Legal principles established

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  • Stay of execution pending appeal requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and security for due performance of the decree
  • The court must balance the applicant's interest in pursuing appeal against the decree holder's right to enjoy the fruits of judgment, secured by adequate security

Court orders

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  1. 1.Stay of execution of the judgment and decree in Kakamega ELRC Cause No. E004 of 2023 granted pending the hearing and determination of the intended appeal, subject to deposit of the entire decretal sum awarded to the 3 grievants into court within 30 days of the ruling, failing which the stay order stands automatically vacated
  2. 2.The application dated 13th September 2024 held to have been overtaken by events and determined under the application of 22nd August 2024
  3. 3.Costs of the application to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (1)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Order 42 Rule 6(1) and (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, "Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Kima Mission Hospital (Employment and Labour Relations Cause E004 of 2023) [2024] KEELRC 2240 (KLR)", Case Analysis (2024). Kakamega ELRC Cause No. E004 of 2023 (Notice of Motion dated 22nd August 2024 consolidated with Notice of Motion dated 13th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2240/eng@2024-09-20

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