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ELRCDismissedApplication arising from the Award of 29th September 2016 (Ruling; cause number not stated in the extract)

Benedict Ojou Juma & 10 others v A. J. Pereira & Sons Limited [2016] KEELRC 180 (KLR)

Employment and Labour Relations Court
13 December 2016
1,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa employment court refused to pause an award because the employer never showed what grounds it had to appeal, so the workers could execute immediately.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa, per James Rika, Judge, delivered a ruling on 13th December 2016 on the Respondent's application dated 3rd November 2016 seeking stay of execution of the Court's Award of 29th September 2016, by which the Respondent was ordered to pay the 11 Claimants Kshs. 3,088,993 in terminal benefits and compensation for unfair termination. The Respondent had filed a Notice of Appeal and sought stay, arguing that execution through proclamation of its goods would halt its business and that the Claimants could not repay the award if the appeal succeeded. The Claimants opposed, contending the application was defective, that the Respondent had delayed, that no draft Memorandum of Appeal was attached, and that no security had been offered. The Court held that although the E&LR Court does not exercise civil jurisdiction under the Civil Procedure Act, its own rules permit application of Civil Procedure Rules in matters of execution, so the application was properly before it. It rejected the Claimants' arguments on functus officio, delay and abuse of process. However, applying the principles restated in Freight in Time Limited v Rosebell Wambui Muthee, the Court found the Respondent had not demonstrated an arguable appeal - no draft Memorandum of Appeal or grounds were availed - and therefore could not establish that the appeal would be rendered nugatory. The application was dismissed with costs to the Claimants, and execution was permitted to proceed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Civil Procedure Act and Rules apply to proceedings of the Employment and Labour Relations Court, so that the Application is properly before the Court
  2. 2.Whether this Court is functus officio after delivering its Award
  3. 3.Whether the Respondent has satisfied the principles for grant of stay of execution pending appeal, namely an arguable appeal and that the appeal would be rendered nugatory if stay is denied

Key legal issues

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01

Applicability of the Civil Procedure Act and Rules to the Employment and Labour Relations Court

Holding

The E&LR Court does not exercise civil jurisdiction under the Civil Procedure Act, but its own Rules permit application of Civil Procedure Rules in areas such as execution; the stay application was therefore properly before the Court

Reasoning

Section 2 of the Civil Procedure Act confines the Act to the High Court and Subordinate Courts in exercise of civil jurisdiction. The E&LR Court is neither, and has its own rules. However, its rules allow the Civil Procedure Rules to apply in defined areas, including execution of decisions. Since the Respondent's application relates to execution and was made under the relevant execution Rules, the Court had jurisdiction to entertain it.

p. 3
02

Functus officio

Holding

The Court rejected the Claimants' contention that it had become functus officio after issuing the Award

Reasoning

The Claimants argued that once the Court pronounced final judgment directing payment within 30 days, it was functus officio and could not entertain a stay application. The Court expressly declined to make that finding, holding instead that the application failed on the substantive stay principles rather than on functus officio.

p. 4
03

Principles for grant of stay of execution

Holding

The Respondent failed to establish an arguable appeal or that the appeal would be rendered nugatory, as no draft Memorandum of Appeal or grounds of appeal were provided

Reasoning

Restating the principles in Freight in Time Limited v Rosebell Wambui Muthee, the Court held that an applicant must satisfy both limbs: an arguable appeal and nugatory-ness. Here, no draft Memorandum of Appeal was attached and not a single ground of appeal appeared in the affidavits, so the Court could not assess arguability. The Respondent focused instead on the effect of execution on its business, which did not satisfy the test.

p. 4

Legal principles established

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  • The Employment and Labour Relations Court does not exercise civil jurisdiction; it exercises specialized jurisdiction, and not every jurisdiction outside criminal jurisdiction is civil
  • In an application for stay of execution, the applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory if stay is denied; satisfying only one limb leads to failure
  • A draft Memorandum of Appeal is necessary for the court to assess whether there is an arguable appeal; a Notice of Appeal alone does not suffice

Court orders

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  1. 1.The Application dated 3rd November 2016 seeking stay of execution is dismissed
  2. 2.Execution shall go on
  3. 3.Costs of the Application are awarded to the Claimants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, read with the execution Rules under the Civil Procedure Rules

Relief refused

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Stay of execution of the Award of 29th September 2016 pending the intended appeal

The Respondent failed to demonstrate both limbs for stay: no draft Memorandum of Appeal or grounds were provided to establish an arguable appeal, and the nugatory-ness limb was therefore unaddressed

p. 4

Costs

The Application is dismissed with costs to the Claimants.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Application is dismissed with costs to the Claimants. Execution shall go on.
p. 4Final orders - dismissal of stay application
The Applicant must first satisfy the Court that Appeal or Intended Appeal is not frivolous, that is to say, that it has an arguable Appeal.
p. 3Stay of execution - first limb
Demonstrating one limb, and failing in demonstrating the other would lead to failure of the Application.
p. 3Stay of execution - both limbs must be established
The Employment and Labour Relations Court is neither the High Court, nor a Subordinate Court regulated under the Civil Procedure Act and Rules. It has its own set of rules, peculiar to its mandate.
p. 3Scope of the Civil Procedure Act

Issues in the judgment

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minor

Paragraph numbering is duplicated - two consecutive paragraphs are both numbered 21

minor

Paragraph numbering is duplicated - two consecutive paragraphs are both numbered 23

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, "Benedict Ojou Juma & 10 others v A. J. Pereira & Sons Limited [2016] KEELRC 180 (KLR)", Case Analysis (2016). Application arising from the Award of 29th September 2016 (Ruling; cause number not stated in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/180/eng@2016-12-13

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