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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 76 (KLR)

Charles Muthama v Wananchi Group [2015] KEELRC 76 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2015
1,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by Linnet Ndolo J of the Employment and Labour Relations Court at Nairobi on the Respondent's Notice of Motion dated 3rd November 2015. The application sought a stay of execution of decrees arising from the Court's award of 8th October 2015, leave to file a Notice of Appeal out of time, leave to appeal, and supply of typed proceedings. The Respondent, through its Legal Manager Judy Njeru, explained that it missed the judgment delivery because the cause list indicated the Trial Judge, Wasilwa J, was on leave; it also contended the award double-counted three months' salary in lieu of notice and made maximum compensation. The Claimant, through Crispsin Wainaina Advocate, countered that parties were duly notified of the judgment date and that the conditions for stay were unmet. The court found from the cause list and file that the judge was on leave on 8th October 2015, with a coram written and cancelled, while the judgment record showed it was read in open court; the Respondent was therefore misled and the delay excusable. Leave to file the Notice of Appeal was granted within seven days. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the arguability test, the court balanced the right of appeal against the Claimant's right to the fruits of the award and granted a conditional stay: 25% of the decretal sum to be released within 14 days, the remaining 75% secured by a bank guarantee within 30 days, failing which the stay would automatically lapse. Costs of the application were made costs in the appeal.

Key legal issues

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01

Extension of time to file Notice of Appeal

Holding

Leave granted; the delay was excusable because the Respondent was misled by the court record and cause list showing the Trial Judge was on leave

Reasoning

Section 7 of the Appellate Jurisdiction Act empowers the court to extend time, to be exercised judiciously. The cause list indicated Wasilwa J was on leave on 8th October 2015 and a coram was written and cancelled, yet the judgment shows it was read in open court. The Respondent was thus misled by the court record, making the delay excusable and warranting leave to file the Notice of Appeal within seven days.

p. 2
02

Conditions for stay of execution pending appeal

Holding

Conditional stay granted upon satisfaction of the Order 42 Rule 6(2) conditions and the arguability of the appeal, with 25% of the decretal sum released and the balance secured by bank guarantee

Reasoning

The court applied the three conditions in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - plus the case-law condition that the appeal be arguable and not rendered nugatory. Weighing the Respondent's right of appeal against the Claimant's right to the fruits of the award, and finding the draft memorandum raises arguable points, the court fashioned a conditional stay rather than an absolute one.

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Legal principles established

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  • The power to extend time for filing a Notice of Appeal must be exercised judiciously, and delay may be excusable where a party was misled by the court record
  • An arguable appeal is one that is not frivolous, and not necessarily one that will succeed
  • In stay of execution applications the court balances the applicant's right of appeal against the decree-holder's right to realise the fruits of the award

Court orders

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  1. 1.Leave granted to the Respondent to file its Notice of Appeal within seven (7) days from the date of the ruling
  2. 2.Conditional stay of execution pending appeal granted: the Respondent to release to the Claimant 25% of the decretal sum within 14 days from the date of the ruling
  3. 3.The balance, being 75% of the decretal sum, to be secured by a bank guarantee perfected within 30 days from the date of the ruling
  4. 4.Failure to observe any condition of stay shall lead to an automatic lapse of the stay
  5. 5.Costs of the application to be costs in the appeal
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (extension of time) and Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Muthama v Wananchi Group [2015] KEELRC 76 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/76/eng@2015-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.