Automated Summary
Key Facts
The Employment and Labour Relations Court in Kenya (Cause 486 of 2017) awarded Maureen J Kibet Kshs.716,300 after ruling her dismissal by Family Bank Limited was wrongful, unfair, and unlawful. The respondent (Family Bank) applied for a stay of execution pending an intended appeal, citing potential substantial loss due to the claimant's unemployment and inability to refund the amount if the appeal succeeds. The court granted the stay on condition that the decretal sum be deposited into a joint interest-earning account within 30 days, with the stay lapsing if this is not done. The claimant argued the sum was not substantial and no appeal memorandum had been filed.
Issues
The primary issue in this application is whether the respondent should be granted a stay of execution pending the hearing and determination of an intended appeal, and if so, on what terms.
Holdings
- The court granted a stay of execution pending the hearing and determination of the intended appeal, allowing the respondent to avoid immediate payment of the decretal sum (Kshs.716,300/=) while ensuring the claimant is protected by requiring the respondent to deposit the amount into a joint interest-earning account within 30 days. In default of this deposit, the stay will lapse.
- The court ruled that the costs of the application will abide with the outcome of the intended appeal, leaving the financial burden contingent on the appeal's resolution.
- The court clarified that the stay of execution does not delay the taxation of costs, as a bill of costs has already been filed and the process may proceed independently.
- The respondent was ordered to deposit the entire decretal sum (Kshs.716,300/=) into a joint interest-earning account with a reputable bank, under the names of both law firms representing the parties, within 30 days of the ruling to secure the claimant against potential loss if the appeal succeeds.
Remedies
- Stay of execution be and is hereby granted pending the hearing and determination of the intended appeal on the following terms and conditions.
- Costs of the application shall be in the intended appeal.
- The respondent shall deposit the amount awarded in the judgment (Kshs.716,300/=) into a joint interest earning account with a reputable bank in the names of the two law-firms representing the parties within 30 days of this ruling.
- In default of depositing the amount into the joint account as ordered, the stay of execution shall automatically lapse.
Monetary Damages
716300.00
Legal Principles
The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, which requires substantial loss, timely application, and security for a stay of execution. It also exercised discretionary powers beyond these conditions, considering factors like the appeal's viability, the claimant's ability to repay, and the interests of justice. Cases cited include Mukuma V Abuoga, Antoine Ndiaye V African Virtual University, and Butt V Rent Restriction Tribunal.
Precedent Name
- Antoine Ndiaye V African Virtual University
- Alhyder Trading Company Limited V Lucy Jepng'etich Mibei
- Madhupaper V Cresent Construction
- Stephen Wanjohi V Central Glass Industries Ltd
- Vista Holdings International Limited V Span Image (K) Limited
- Mukuma V Abuoga
- Nduhiu Gitahi V Warugongo
Cited Statute
- Employment and Labour Relations Court Act
- Civil Procedure Rules
- Constitution of Kenya
- Civil Procedure Act
Judge Name
David Nderitu
Passage Text
- The respondent shall deposit the amount awarded in the judgment in the sum of Kshs.716,300/= into a joint interest earning account with a reputable bank in the names of the two law-firms representing the parties within 30 days of this ruling.
- It has not been disclosed to this court whether the respondent has actually filed an appeal besides the intention expressed in the notice of appeal. This court, either way, has no business considering the probability of success of an appeal against its own judgment. It is not one of the elementary factors that this court should consider based on the law cited above.
- In my considered view, the respondent has met the three basic requirements for grant of stay of execution. When the judgment was delivered on 19th October, 2023, the respondent sought and was granted a stay for 30 days. Before the expiry of the said period, the respondent filed this application on 8th November, 2023. On the issue of substantial loss, the claimant was challenged in the application to demonstrate that she has the means to refund monies to be paid to her pursuant to the decree in the event that the appeal ultimately succeeds. She did not take up that challenge.