[2024] KEELRC 1584 (KLR)

Njaramba v Nairobi Water & Sewerage Company Limited (Cause 1414 of 2018) [2024] KEELRC 1584 (KLR) (21 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1584 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1414 of 2018

SC Rutto, J

June 21, 2024

Between

James Mwangi Njaramba

Claimant

and

Nairobi Water & Sewerage Company Limited

Respondent

Ruling

1. By a Notice of Motion dated 9th February 2024 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51(1 of the Civil Procedure Rules, the Respondent/Judgment Debtor seeks the following orders:1. Spent.2. That this Honourable Court be pleased to order stay of execution of the Judgment dated 28th April 2023 and the consequential decree issued against the Respondent/Judgment Debtor in this case pending hearing and determination of this application.3. That this Honourable Court be pleased to order stay of execution of the judgment dated 28th April 2023 and the consequential decree issued against the Respondent/Judgment Debtor in this case pending hearing and determination of the Appeal filed by the Claimant/Decree Holder being COACA/E646/2023: James Mwangi Njaramba Versus Nairobi City & Sewerage Company Limited.4. That this Honourable Court be pleased to allow the Decretal sums of Kshs.2,127,590/= together with the cost of Kshs. 335,740/= to be deposited in a joint Interest earning account pending the Hearing and determination of the Appeal filed by the Claimant/Decree Holder being COACA/E646/2023: James Mwangi Njaramba Versus Nairobi City & Sewerage Company Limited.5. That the Costs of this application be provided for.

2. The grounds in support of the Application are set out in the body of the Motion and the Affidavit sworn on 9th February 2024 by Viola Odhiambo who describes herself as the legal officer of the Judgment Debtor, herein.

3. Ms. Odhiambo deposes that the Court entered Judgment on 28th April 2023 wherein it determined that the Claimant/Decree Holder was discriminated against on account of his disability thus awarding him a sum of Kshs. 2,127,590/ - and costs of the suit. Being dissatisfied with the said Judgment, the Claimant/Decree Holder filed a Notice of Appeal dated 3rd July 2023. That the Claimant/Decree Holder also proceeded to file an Appeal before the Court of Appeal, being COACA/E646/2023: James Mwangi Njaramba Versus Nairobi City & Sewerage Company Limited, challenging the decision of this Honourable Court. The Appeal is yet to be heard and determined.

4. She further averred that during the pendency of the Appeal, the Claimant/Decree Holder proceeded to instruct its Auctioneers, Mbusera Auctioneers, who have since obtained Warrants of Attachment and issued a Proclamation Notice to the Respondent/Judgment Debtor herein. The Respondent/Judgment Debtor is now apprehensive that in case the Claimant/Decree Holder proceeds to execute, the Appeal already filed might be moot.

5. According to Ms. Odhiambo, the Respondent/Judgment Debtor has always been willing to settle the decretal sums but due to the pending Appeal filed by the Claimant/Decree Holder, the Respondent/Judgment Debtor halted the release of the said funds.

6. The Applicant is ready and willing to remit the decretal sum of Kshs. 2,127,590/= together with the cost of Kshs. 335,740/= in a joint interest-earning account pending the hearing and determination of the Appeal.

7. The Respondent/Judgment Debtor is apprehensive that the Court of Appeal might either enhance or reduce the decretal sums hence affecting the execution of the Decree issued by this Honourable Court.

8. The Claimant/Decree Holder opposed the Judgment Debtor’s Application through his Replying Affidavit sworn on 10th February 2024. He avers that he has been informed by his Advocates on record that the general rule is that the Courts ought not to deny a successful litigant the fruits of his judgment save in exceptional circumstances.

9. In further deposition, the Claimant/Decree Holder states that no challenge whatsoever has been made by the Respondent/Judgment Debtor herein, the unsuccessful party to challenge the judgment in the Court of Appeal.

10. In his view, it borders on absurdity for the Judgment Debtor to ask for stay of execution of his judgment just because he has preferred an Appeal and completely devoid of any legal just or equitable basis in law.

11. He further avers that there being no Appeal by the Respondent/Judgment Debtor, it cannot, by any stretch of Judicial craft, be heard to say that it has an arguable appeal. He maintains that there is no appeal to be argued by the Respondent/ Judgment Debtor, and there is no appeal by the Respondent/Judgment Debtor that can be rendered nugatory.

12. According to the Claimant/Decree Holder, it is disingenuous for the Respondent/ Judgment Debtor to aver that it has all along been ready to settle the decretal sum but halted the same because of the Appeal. In his view, this is a naked attempt by a disgruntled Respondent/Judgment Debtor to stifle his efforts to pursue his rights under the law and contrary to his right to access to justice under Article 48 of the Constitution.

13. He further contends that the Respondent/ Judgment Debtor has been aware of the Appeal since the Notice of Appeal was lodged on 3rd July 2023.

14. According to him, he is being punished because of filing an Appeal. That further, the Application has not been filed timeously, is an afterthought and an abuse of the Court process that raises no reasonable cause of action and should be dismissed.

15. The Claimant/Decree holder further states that there is no Appeal by the Respondent that seeks the Court of Appeal to reduce the decretal sum. In his view, the worst the Court of Appeal can do is to dismiss the Appeal.

16. He further avers that he is still an employee of the Respondent/Judgment Debtor earning a salary and nothing would stop it from recovering any amount. He further holds the view that no substantial loss or prejudice can possibly be visited upon the Respondent/Judgment Debtor by payment of the decretal sum and none has been shown.

17. The Claimant/Decree holder further states that he has been under a lot of pressure from the Respondent/Judgment Debtor, who is still his employer, to drop the Appeal altogether, as a condition precedent to the payment of the decretal sum, which makes him very worried.

18. He has been informed by his Advocates on record that officers from the Respondent/Judgment Debtor have reached out to him and informed him that they are willing to pay the decretal sum on condition that he drops the Appeal.

19. Further to the Claimant’s Replying Affidavit, his Counsel on record, Mr. David Kamau Githinji swore an Affidavit dated 10th February 2024 in which he deposes that they obtained warrants of attachment on 23rd January 2024. On the same day, Mr. Ocholla, the Advocate in conduct of the proceedings on behalf of the Respondent/Judgment Debtor called and informed him that the Respondent/Judgment Debtor had asked for their Bank details so that it could settle the decretal sum.

20. Accordingly, he sent their banking details to his number on WhatsApp. Over the following number of days, the Advocate assured him that the amount would be paid but it would take about 7 days to settle the same as the Respondent/Judgment Debtor is a large institution and several levels of authority would be required.

21. Accordingly, and in good faith, they held on to execution in the expectation that the Respondent/ Judgment Debtor would keep its word.

22. On Monday 5th February 2024, out of frustrations that over a period of two weeks the Respondent had been taking them round in eddies, he instructed the auctioneers to proclaim.

23. On 7th February 2024 the Claimant/Decree Holder informed him that he was under extensive pressure to withdraw the Appeal before he was paid. He informed him to advise the Respondent/Judgment Debtor that they would be amenable to get a compromise for the Appeal but that should not be used to withhold the payment.

24. Soon thereafter, he received a call from one Maureen from the Respondent/Judgment Debtor who proposed that the funds be paid into a joint interest-earning account pending the hearing of the Appeal. He politely declined informing her that there is no legal basis for her arguments.

25. According to Mr. Githinji, it is only when they proclaimed, rather than the prospects of the Appeal, and as an afterthought that the Respondent/ Judgment Debtor decided to rush to Court to stop the legitimate process without any lawful cause.

Submissions 26. The Application was canvassed by way of written submissions. Both parties complied and I have considered their respective submissions.

Analysis and Determination 27. I have considered the Application before me, the grounds in support thereof, the responses thereto as well as the rival submissions and to my mind, the singular issue that stands out for determination is whether the Court should allow the Respondent/Judgment Debtor’s Application thereby staying execution of the judgment dated 28th April 2023 pending hearing and determination of the Appeal filed by the Claimant/Decree Holder.

28. The principles guiding the grant of stay of execution pending appeal are well settled and are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which is couched as follows: -(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

29. Suffice to say, an applicant seeking stay of execution of a decree pending appeal is obliged to satisfy the conditions aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.

30. This is a unique case in the sense that whereas it is the Decree Holder who has lodged an Appeal against this court’s judgment, it is the Judgment Debtor who has sought to stay execution pending that Appeal.

31. In my respectful view, the objective of Order 42 rule 6(2) aforesaid, is to safeguard the rights of the appellant in the event the Appeal is successful. Such was the position taken by the Court of Appeal in the case of RWW vs EKW (2019) eKLR, where it was held as follows: -“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.

32. As stated herein, one of the key principles to be satisfied before an order for stay of execution is granted, is that the applicant will suffer substantial loss unless the order is made.

33. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

34. In this case, the Judgment Debtor has argued that it is apprehensive of the costs and risks of double execution in case the execution proceeds and thereafter the Appeal is allowed. The Judgment debtor further submits that in the event the Appeal is allowed and subsequently the decretal amount is reduced by the court of Appeal, the Decree Holder might be unable to repay the sum owed.

35. According to the Judgment Debtor, it will suffer substantial loss if the execution is not stayed as it will loose critical funds due to double execution.

36. On its part, the Decree Holder has submitted that the Judgment Debtor has no Appeal on the basis of which it can seek stay of execution. He further argues that in the absence of an Appeal by the Judgment Debtor, the Court of Appeal can only do two things; dismiss the Appeal and so revert to the award or allow the Appeal and enhance the award. In the Decree Holder’s view, no substantial loss has been proved by the Judgment Debtor. He further argues that he is an employee of the Judgment Debtor and if there was to be any reduction of the award on Appeal, nothing would stop the Judgment Debtor from making such deductions.

37. It is evident from the record that the Judgment Debtor has not lodged an appeal against this Court’s determination. Further to that, there is no evidence that it has lodged a cross-appeal either.

38. This being the case, the chances of the Court of Appeal reducing the award or setting the same aside is quite remote if not nil. At the very least, the Court of Appeal would dismiss the Appeal and sustain the award. As such, the Judgment Debtor has not demonstrated the substantial loss it stands to suffer, whichever way the Appeal goes.

39. Accordingly, I am not persuaded that the Judgment Debtor has satisfied the requirement for grant of an order staying execution pending appeal. In the circumstances, I disallow the Judgment Debtor’s Application dated 9th February 2024, with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JUNE 2024. ………………………………STELLA RUTTOJUDGEIn the presence of:Mr. Githinji for the Claimant/Decree HolderMr. Kichwen for the Respondent/Judgment DebtorMillicent Kibet Court AssistantORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE