[2022] KEELRC 975 (KLR)
The court found that the circumstances which led to the initial order for security—namely, the respondent's disposal of assets and business and termination of employees—remained unchanged. The appellant's application was not for a stay of the negative order dismissing his claim, but for preservation of the security...
Source-derived case information.
- Citation
- [2022] KEELRC 975 (KLR)
- Parties
- Appellant: Elijah Otieno Oluoch; Respondent: Golden Biscuits [1985] Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Appeal E037 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Application for Preservation of Security Deposit Pending Appeal
- Outcome
- Application allowed. Security deposit to remain in court pending appeal.
- Judges
- J Rika
- Legal Topics
- Security for Performance of Decree, Stay of Execution, Preservation of Funds, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Otieno Oluoch
Appellant
Golden Biscuits [1985] Limited
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Preservation of Security Deposit Pending Appeal
Legal Issues
- 1 Whether the security deposit made by the respondent should remain in court pending determination of the appeal.
- 2 Whether the respondent would be prejudiced by continued retention of the deposit in court.
- 3 Whether the application is governed by Order 42 of the Civil Procedure Rules or by the Employment and Labour Relations Court Act.
Ratio Decidendi
The court found that the circumstances which led to the initial order for security—namely, the respondent's disposal of assets and business and termination of employees—remained unchanged. The appellant's application was not for a stay of the negative order dismissing his claim, but for preservation of the security deposit in the event he succeeded on appeal. The court held that the interests of justice required the deposit to remain in the court's account until the appeal was determined, as there was no prejudice to the respondent and a real risk that the appellant would be unable to recover any judgment if the funds were released.
Court Disposition
Application allowed. Security deposit to remain in court pending appeal.
Orders
- Deposit made by the respondent in court as security for performance of decree shall remain in the account of the court pending hearing and determination of the appeal.
- Costs of the application in the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
APPEAL NUMBER E037 OF 2021
BETWEEN
ELIJAH OTIENO OLUOCH.......................................................................APPELLANT
VERSUS
GOLDEN BISCUITS [1985] LIMITED......................................................RESPONDENT
RULING
1. The Appellant unsuccessfully sued his former Employer, the Respondent herein, at Milimani CMELRC No. 493 of 2019.
2. His claim was dismissed on 19th March 2021, prompting the filing of this Appeal.
3. On 20th September 2019, he had been issued by the Trial Court orders, requiring the Respondent herein, to deposit the sum of Kshs. 1,000,000, being the approximate sum, enough to satisfy any Judgment that could have issued in favour of the Claimant.
4. The Appellant had argued and convinced the Trial Court that, the Respondent had disposed of its assets and business, and terminated the contracts of all Employees. It was found likely not to be in a position to satisfy any Judgment made in favour of the Appellant.
5. Now that Judgment was not in favour of the Appellant, he is apprehensive that the Respondent will walk back to the Trial Court, and cart away the Kshs. 1,000,000 which had been deposited as security for performance of decree. He would if successful on Appeal, be left chasing the wind.
6. He has filed an Application dated 17th May 2021, supported by his Affidavit sworn on the same date, asking the Court to bar the Respondent from accessing the deposit, and that the deposit continues to be held in the account of the Court, until the Appeal is heard and determined.
7. The Respondent is opposed to the Application, relying on Grounds of Opposition dated 8th June 2021.
8. These are that: order 42 Rule 7, of the Civil Procedure Rules presupposes that where there is an order for execution of a decree, the Court can grant orders for deposit of security for performance of a decree; the Trial Court orders in this case are negative orders and there is nothing to execute, other than costs as the Trial Court dismissed the Claim; that even where an order for stay is given, the Applicant is required to give security as to costs, which the Appellant has not; and the Application should be dismissed with costs.
9. The Court granted the Appellant interim orders for preservation of the status quo, on 21st May 2021.
10. Parties consented on 10th June 2021 to have the Application argued and determined on the basis of the record. They confirmed filing of Submissions, on 22nd October 2021.
The Court Finds: -
11. The factors which persuaded the Trial Court to grant the Appellant the orders of 20th September 2019, are still relevant in this Application.
12. It is true the Trial Court dismissed the Appellant’s Claim. The orders issued are negative orders. The Appellant has appealed the decision of the Trial Court. His Application, is not that the orders dismissing his Claim are stayed. Rather, he seeks that the security for performance of decree, deposited in the Trial Court, is transitioned into security for performance of any decree that may issue in his favour on Appeal. His Application is more to do with Sections 3 and 12 of the Employment and Labour Relations Court Act, rather than Order 42 of the Civil Procedure Rules.
13. His former Employer has sold its business and assets. It has dismissed Employees. It is unlikely that the Appellant would succeed in executing any decree issued in his favour on Appeal. The Respondent would access its deposit effortlessly, if the Appellant is unsuccessful. There is no prejudice occasioned to the Respondent, if the money stays in the account of the Judiciary a little longer. The interest of justice is in favour of allowing the Application by the Appellant, dated 17th May 2021.
IT IS ORDERED: -
a. Deposit made by the Respondent in Court as security for performance of decree, in the orders issued by the Trial Court on 20th September 2019, shall remain in the account of the Court, pending hearing and determination of the Appeal filed herein.
b. Costs of the Application in the Appeal.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND
JUDICIARY COVID-19 GUIDELINES, THIS 28TH DAY OF JANUARY 2022.
JAMES RIKA
JUDGE