[2022] KEELRC 14679 (KLR)
The court found that the respondents had not demonstrated substantial loss would be occasioned if the petitioners' salaries were paid, as the employment relationship was admitted and the petitioners were willing to work but were prevented by the respondents' failure to provide a safe work environment. The doctrine...
Source-derived case information.
- Citation
- [2022] KEELRC 14679 (KLR)
- Parties
- Applicant: Nashon Oliech Osieko; Applicant: Raphael Muyonga; Applicant: Rachel Mayaka; Applicant: Imelda Nubia; Respondent: Francis Ooko; Respondent: Harun Kirui; Respondent: Muhoroni Sugar Co Limited (In Receivership)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Petition 25 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- S Radido
- Legal Topics
- Stay of Execution, No Work No Pay, Employment Relationship, Salary Arrears, Substantial Loss, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nashon Oliech Osieko
Applicant
Raphael Muyonga
Applicant
Rachel Mayaka
Applicant
Imelda Nubia
Applicant
Francis Ooko
Respondent
Harun Kirui
Respondent
Muhoroni Sugar Co Limited (In Receivership)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondents are entitled to a stay of execution of the judgment and orders pending appeal.
- 2 Whether the doctrine of no work, no pay applies to the petitioners in the circumstances.
- 3 Whether the respondents would suffer substantial loss if the stay is not granted.
Ratio Decidendi
The court found that the respondents had not demonstrated substantial loss would be occasioned if the petitioners' salaries were paid, as the employment relationship was admitted and the petitioners were willing to work but were prevented by the respondents' failure to provide a safe work environment. The doctrine of no work, no pay was held inapplicable in these circumstances. The application for stay was made promptly, but the substantive requirements for granting a stay were not met. The motion was therefore dismissed with costs to the petitioners.
Court Disposition
application dismissed with costs
Orders
- The motion for stay of execution is dismissed with costs to the petitioners.
Full Case Text
Judgment text and source record
41 paragraphs
Osieko & 3 others v Ooko & 2 others (Employment and Labour Relations Petition 25 of 2021) [2022] KEELRC 14679 (KLR) (23 March 2022) (Ruling)
Neutral citation: [2022] KEELRC 14679 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Employment and Labour Relations Petition 25 of 2021
S Radido, J
March 23, 2022
IN THE MATTER OF CONTRAVENTION OF RIGHT TO FAIR LABOUR RELATIONS, FAIR ADMINISTRATIVE ACTION, AND RIGHT AGAINST INHUMAN AND DEGRADING TREATMENT
Between
Nashon Oliech Osieko
1st Petitioner
Raphael Muyonga
2nd Petitioner
Rachel Mayaka
3rd Petitioner
Imelda Nubia
4th Petitioner
and
Francis Ooko
1st Respondent
Harun Kirui
2nd Respondent
Muhoroni Sugar Co Limited (In Receivership)
3rd Respondent
Ruling
1. For determination is a Motion dated December 15, 2021, by the Respondents seeking orders:(1).(2).(3)That this Honourable Court be pleased to order a stay of execution of the Court judgment and orders issued herein on December 1, 2021 pending the hearing and determination of the intended appeal before the Court of Appeal.(4)That the costs of this application be in the cause.
2. The grounds in support of the application were that the intended Appeal would be prejudiced if execution proceeded; the application had been brought without inordinate delay; that the Respondents could not humanly provide security to the 1st to 3rd Petitioners because they could not do any more after reporting to the police about the security status and that the Petitioners could not be paid as they were not providing any services.
3. In the supporting affidavit, the 1st Respondent, a Receiver Manager with the 3rd Respondent, admitted that the 1st to 3rd Petitioners were still employees, and could not be paid their remuneration because they were not offering any services.
4. The 1st, 2nd and 3rd Petitioners filed replying affidavits in opposition to the Motion on February 7, 2022.
5. In the view of the Petitioners, the application was an abuse of the court process because the Respondents had filed a review application on December 21, 2021, and an application for review could not run concurrently with an Appeal; that a stay could not issue against a finding of the fact that the Petitioners were employees of the Respondents; the application had been made in bad faith because the Respondents had not paid accrued salary arrears and that no security had been offered.
6. In their submissions, the Respondents submitted that there was a risk the Petitioners would leave employment unceremoniously if the judgment were executed, leaving them with no avenue of recovering the decretal sum if the Appeal were to succeed.
7. The Respondents also submitted that there were challenges paying other employees’ wages, and it would be discriminatory to pay the Petitioners in lumpsum.
8. The Respondents further drew the attention of the Court to the doctrine of no work, no pay as a fundamental axiom in industrial relations, and the book Law of Master and Servant in South Africa by Norman Scoble was cited.
9. The Court has considered the material placed before it.
Inordinate delay 10. The Respondents filed a Notice of Appeal and the instant Motion within days of the judgment. The question of inordinate delay does not therefore arise.
Substantial loss 11. On the question of substantial loss, the Respondents admitted that the Petitioners are still employees (the Court had given reasons in the judgment why it ordered that the Petitioners’ salaries be paid).
12. The Court is unable to buy into the Respondents’ argument that the doctrine of no work, no pay applies in the instant case.
13. The Petitioners have always been ready and willing to work, but the Respondents have failed to fulfil their obligation to create a safe and secure work environment to enable them to work.
14. Considering that the Respondents have admitted and continue to admit the existence of an employment relationship with the Petitioners, this Court does not buy into the argument by the Respondents that if the salaries are paid, they would be occasioned (a) substantial loss.
15. The Motion is dismissed with costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 23RD DAY OF MARCH 2022. Radido Stephen, MCIArbJudgeAppearancesFor applicant N.E. Mogusu & Co. AdvocatesFor Respondents The Federation of Kenya EmployersCourt Assistant Chrispo Aura