Kenya Post Office Savings Bank v Aguvasu (Employment and Labour Relations Appeal E293 of 2024) [2024] KEELRC 2753 (KLR)
The bottom line
#Kenya's Employment Court froze enforcement of a KSh 1.6 million award against Postbank and moved the case to a different magistrate over bias concerns.
What this practically means
#Executive summary
#Key legal issues
#Referral of the set-aside application to another magistrate on grounds of bias/apparent bias
The court found the applicant had justified reasons for its lack of confidence in Hon. L. Ambasi (CM) and referred the application to another magistrate.
The applicant's counsel contended that the magistrate by her conduct and words on 12th September 2024 and 1st October 2024 demonstrated bias, and that justice must be seen to be done. The respondent opposed only this prayer. The court, anchored on the principle that justice must be done and be seen to be done, held the prayer merited.
Failure of the trial magistrate to consider substantial loss in declining stay of execution
The magistrate erred in rejecting the prayers for certification and interim stay without addressing the question of substantial loss, which had been demonstrated by warrants of attachment and a proclamation notice.
Applying Order 42(6) principles and James Wangalwa v Agnes Naliaka Cheseto, the court held the applicant demonstrated a real risk of substantial loss through annexure GM1-a (warrants of attachment and proclamation notice), and the magistrate ought to have addressed her mind to substantial loss in exercising her discretion to reject the interim stay.
Legal principles established
#- Although the grant of certification of urgency and interim stay is discretionary, that discretion must be exercised judiciously and not at whim.
- Substantial loss is the cornerstone of a grant of stay of execution under Order 42(6).
- A court considering setting aside a judgment must aim to sustain the subject matter of the proceedings so the application is not rendered nugatory by execution.
Court orders
#- 1.An ex parte interim order of stay of execution of the ex parte orders given on 27th August 2024 in Milimani Misc. MCELRC Misc. No. E013 of 2024 and further proceedings therein pending the inter partes hearing and determination of the application and the application dated 11th September 2024 in the said cause
- 2.An order of stay of execution of the ex parte orders given on 27th August 2024 in Milimani Misc. MCELRC Misc. No. E013 of 2024 and further proceedings therein pending the hearing and determination of the appeal herein
- 3.Appeal allowed
- 4.Orders of the Chief Magistrate's Court of 12th September 2024 and 1st October 2024 refusing stay of execution set aside and substituted with an order granting stay of execution of the order of 27th August 2024 pending hearing and determination of the application dated 11th September 2024
- 5.The application dated 11th September 2024 referred to another Magistrate with jurisdiction other than Hon. L. Ambasi (Mrs.) CM for hearing and determination of the pending issues
- 6.No order as to costs
- On appeal from
- Chief Magistrate's Court at Milimani (MCELRC Misc. No. E013 of 2024 – John Chavene Aguvasu v Kenya Post Office Savings Bank Limited)
- MCELRC Misc. No. E013 of 2024
- Jurisdiction invoked
- First appellate and supervisory jurisdiction of the ELRC over the Chief Magistrate's Court; appeal against orders of the trial magistrate in MCELRC Misc. No. E013 of 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Post Office Savings Bank v Aguvasu (Employment and Labour Relations Appeal E293 of 2024) [2024] KEELRC 2753 (KLR)", Case Analysis (2024). Nairobi ELRC Appeal No. E0292 of 2024 (Notice of Motion dated 2nd October 2024 as consolidated with an application of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2753/eng@2024-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.