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ELRCAllowedELRC Appeal (Mombasa) - Application dated 7 June 2024, arising from Mombasa CMELRC No.514 of 2021· [2024] KEELRC 2293 (KLR)

Professional Clean Care v Fondo (Employment and Labour Relations Appeal E068 of 2024) [2024] KEELRC 2293 (KLR)

Employment and Labour Relations Court
26 September 2024
1,742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment appeal got a stay of execution because the appellant met court-set deadlines for filing the appeal and depositing the awarded money.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) determines the appellant's application dated 7 June 2024 seeking stay of execution of the decree in Mombasa CMELRC No.514 of 2021 (Ksh.540,380 awarded for unfair termination, judgment delivered 6 December 2023) and that the Memorandum and Record of Appeal be deemed properly filed. The appellant had earlier obtained, in Misc. Application No.E030 of 2024, orders on 11 April 2024 allowing an appeal out of time conditional on filing within 14 days and depositing the decretal sum within 21 days; the appeal was filed on 23 April 2024 and the deposit made on 7 May 2024. On 6 June 2024 the court nonetheless dismissed the earlier application as functus officio and directed release of the decretal sum. The respondent opposed the fresh application as res judicata and an abuse of process, citing George W M Omondi and Satya Bhama Gandi. The court held the appellant had complied with the 11 April 2024 conditions, applying Keziah Stella Pyman and Maersk Kenya Limited on counting court days excluding weekends, holidays and vacations. Finding the Order 42 rule 6(2) conditions met - substantial loss if the decretal sum was released, no unreasonable delay, and security already in court - and applying Jason Ngumba Kagu on substantial loss, the court allowed the application, stayed execution of the decree pending hearing and determination of the appeal, and ordered costs to abide the outcome of the appeal.

Key legal issues

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01

Res judicata / abuse of process arising from prior Misc. Application No.E030 of 2024

Holding

The court found the prior application had been determined with finality but that the present application was distinct - it sought stay of execution pending the appeal now on record, not a re-litigation of extension of time.

Reasoning

Both parties agreed Misc. Application No.E030 of 2024 was determined with finality. The respondent argued the stay application was res judicata since similar orders were sought and dismissed on 6 June 2024 when the court held it was functus officio. The court however found the appellant had complied with the 11 April 2024 conditions (appeal filed within 14 days, decretal sum deposited within 17 days), so the present stay application addressed a different subject: preserving the appeal now properly on record.

p. 3
02

Compliance with the conditions for leave to appeal out of time

Holding

The appellant complied: the Memorandum of Appeal filed on 23 April 2024 was within 14 days (8 days of court time under Order 50 excluding weekends, holidays and vacations), and the deposit on 7 May 2024 was within 21 days.

Reasoning

Relying on Keziah Stella Pyman and Maersk Kenya Limited, the court held that in counting days allocated by the court, weekends, public holidays and court vacations are excluded, making the filing timely. The decretal sum was deposited within the 21-day period.

p. 3
03

Conditions for stay of execution under Order 42 rule 6(2)

Holding

The conditions were satisfied: substantial loss would result if the decretal sum were released, the application was made without unreasonable delay, and security was in place as the decretal sum was already deposited in court.

Reasoning

Applying Order 42 rule 6(2), the court found the decretal sum was already deposited in court, securing the decree whichever way the appeal was decided. Citing Jason Ngumba Kagu, substantial loss is the cornerstone of the jurisdiction, and the balancing act between the respondent's right to the fruits of judgment and the appellant's appeal prospects favoured stay since the funds remained available to the respondent upon success.

p. 3

Legal principles established

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  • Where a court grants leave to appeal out of time subject to conditions of filing and deposit of the decretal sum, compliance with those conditions secures the appeal and justifies stay of execution pending appeal.
  • A court becomes functus officio once the purpose for which it was moved under a miscellaneous application has been fulfilled.

Court orders

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  1. 1.The application dated 7 June 2024 is allowed
  2. 2.An order of stay of execution of the Decree in Mombasa CMELRC No.514 of 2021 is issued pending hearing and determination of the appeal
  3. 3.Costs to abide by the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 / rule 6(2)
  • Civil Procedure RulesOrder 50

Cases cited (7)

  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
    [2006] eKLR
  • Boniface Kariuki Wahome v Peter Nziki Nyamai & Another
    [2019] eKLR
  • George W M Omondi & another v National Bank of Kenya Ltd & 2 others
    [2001] eKLR
  • Satya Bhama Gandi v Director of Public Prosecutions & others
    null
  • Keziah Stella Pyman & 2 others vs Paul Mwololo Mutevu & 8 others
    [2013] eKLR
  • Maersk Kenya Limited v Murabu Chaka Tsuma
    [2017] eKLR
  • Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited
    [2014] eKLR
On appeal from
Mombasa Chief Magistrate's Court (CMELRC)
Mombasa CMELRC No.514 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal); appeal from the magistrates' court to the ELRC

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, "Professional Clean Care v Fondo (Employment and Labour Relations Appeal E068 of 2024) [2024] KEELRC 2293 (KLR)", Case Analysis (2024). ELRC Appeal (Mombasa) - Application dated 7 June 2024, arising from Mombasa CMELRC No.514 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2293/eng@2024-09-26

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