[2020] KEELRC 976 (KLR)
The court found that while the appellant complied with the requirement to deposit security, it failed to demonstrate substantial loss that would be occasioned if stay of execution was not granted. The application for stay of execution did not meet the threshold set out under Order 42 Rule 6 of the Civil Procedure...
Source-derived case information.
- Citation
- [2020] KEELRC 976 (KLR)
- Parties
- Appellant: Janta Kenya Limited; Respondent: Millicent Achieng Otieno
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Stay of execution pending appeal declined; leave to appeal out of time granted; directions issued for filing of submissions.
- Judges
- MSA Makhandia
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Decretal Sum, Unfair Termination, Substantial Loss Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janta Kenya Limited
Appellant
Millicent Achieng Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the appellant satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether leave to appeal out of time should be granted to the appellant.
- 3 Whether the appellant demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that while the appellant complied with the requirement to deposit security, it failed to demonstrate substantial loss that would be occasioned if stay of execution was not granted. The application for stay of execution did not meet the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules. However, the court had already granted leave to appeal out of time and noted that the record of appeal was ready. Consequently, the court declined to grant a stay of execution pending appeal but issued directions for the filing of submissions and extended interim orders pending judgment. Costs were ordered to abide the outcome of the appeal.
Court Disposition
Stay of execution pending appeal declined; leave to appeal out of time granted; directions issued for filing of submissions.
Orders
- Appellant to file and serve submissions on or before 3 July 2020.
- Respondent to file submissions on or before 3 August 2020.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CIVIL APPEAL NO. 62 OF 2019
JANTA KENYA LIMITED.....................................................APPELLANT
v
MILLICENT ACHIENG OTIENO.....................................RESPONDENT
(Being an appeal from the judgment of the Honourable A.N. Makau (Ms) delivered on 4th October 2019 in Milimani CMCC No. 93 of 2018)
RULING
1. The Magistrates’ Court delivered judgment in favour of Millicent Achieng Otieno (Respondent) on 4 October 2019 in which the heads of claim for salary in lieu of notice, pro-rata leave and compensation for unfair termination of employment were allowed.
2. Janta Kenya Ltd (Appellant) was aggrieved and on 29 November 2019 it filed a motion under a certificate of urgency seeking orders
1. …. (spent)
2. This Honourable Court grant a stay of execution of the judgment and subsequent decree of the Honourable A.N. Makau delivered on 4th October 2019 pending the hearing and determination of this application.
3. This Honourable Court grant a stay of execution of the judgment and subsequent decree of the Honourable A.N. Makau delivered on 4th October 2019 pending the hearing and determination of this Appeal.
4. This Honourable Court be pleased to grant the Appellant leave to lodge an appeal out of time against the decision delivered on 4th October 2019 by the Chief Magistrates Employment and Labour Court CMEL No.93 of 2019.
5. Upon grant of leave to appeal out of time, the Memorandum and record of Appeal herein be deemed as duly filed.
6. The costs of this application be in the cause.
3. The Duty Court certified the application as urgent on 2 December 2019 and directed that it be served for inter partes hearing on 10 December 2019.
4. During the appearances on 10 December 2019, the Court granted an interim stay of execution on condition that the Appellant deposited the decretal sum into Court. The sum of Kshs 143,716/- was deposited into Court on 30 January 2020.
5. The Respondent, through her advocate on record, filed a replying affidavit in opposition to the application on 16 December 2019 and this prompted the Appellant’s advocate to file a further affidavit on 20 January 2020.
6. The motion was argued on 13 February 2020 and pending the delivery of this Ruling, the Court granted leave to appeal out of time to the Appellant.
7. The Court has considered the application, the affidavits and oral submissions.
8. The conditions upon which stay of execution pending appeal is granted need no rehashing. The conditions are derivative(s) from Order 42 Rule 6 of the Civil Procedure Rules. They are tender of security, demonstration of substantial loss if a stay is not granted, and moving the Court without inordinate delay.
9. The Court already directed the Appellant to deposit security with the Court and the same condition was complied with albeit late (an explanation was tendered).
10. Apart from the security deposit, it was incumbent upon the Appellant to demonstrate the substantial loss which would be occasioned to it were stay of execution not be granted. There was no attempt whatsoever to prove this condition in the affidavit.
11. On the question of unreasonable delay, the Appellant filed the application within weeks of the judgment and nothing turns on the condition.
12. Since the Appellant was granted leave to appeal out of time and the Record of Appeal is ready, and despite not meeting the threshold for a stay of execution pending appeal, the Court directs/orders as follows pursuant to Order 42 Rule 13
(a) Appellant to file/serve submissions on or before 3 July 2020.
(b) Respondent to file submissions on or before 3 August 2020.
(c) Mention on 3 August 2020 to confirm compliance/further directions.
(d) Pending judgment, interim orders extended.
13. Costs to abide the outcome of Appeal.
Delivered through Microsoft teams/email, dated and signed in Nairobi on this 5th day of June 2020.
Radido Stephen
Judge
Appearances
For Appellant Mr. Wanjeri instructed by Wangui Wanjuhi Advocates
For Respondent Ms. Ochogo instructed by Gakoi Maina & Co. Advocates
Court Assistant Judy Maina