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ELRCPartially AllowedELRC Cause No. 338 of 2017 (formerly Kisumu High Court Civil Suit No. 8 of 2003)

Charles P.O. Nyamunga & 68 others v Maseno University [2020] KEELRC 183 (KLR)

Employment and Labour Relations Court
27 November 2020
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to freeze the full judgment debt, ordering half paid within 30 days because 17 years of waiting tipped fairness against the appellant.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 28th May 2019 in which the respondent/applicant sought a temporary stay of execution of the judgment and decree of 21st February 2019 pending its appeal to the Court of Appeal. The application was supported by grounds that the appeal had been noted promptly, raised triable issues with high chances of success, that the applicant would suffer substantial loss, and that it was willing to deposit a bank guarantee as security. The claimant/respondents opposed via grounds of contention that the application was filed more than three months after judgment, contrary to Order 42 rule 6(2)(a) of the Civil Procedure Rules, and that the applicant failed to demonstrate substantial loss, nugatory-ness of the appeal, or adequate security. The applicant relied on three Court of Appeal authorities on delay. The Court found that although the application was filed more than three months after judgment, the appeal was noted timeously within the 14-day window. However, the applicant offered bank security without demonstrating that the claimants could not refund the decretal sum, and thus failed to show substantial loss. Similar suits had been determined previously and the applicant did not distinguish them. The balance of convenience favoured the claimants, who had waited over 17 years since 2003 for their terminal benefits. The Court partially allowed the application: stay of execution was granted only in respect of half of the decretal sum, with the other half payable to the claimants within 30 days, failing which the stay would lapse forthwith. The ruling was delivered online pursuant to COVID-19 directions. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the application for stay of execution was filed after unreasonable delay
  2. 2.Whether the applicant demonstrated substantial loss if stay is not granted
  3. 3.Whether the appeal would be rendered nugatory if stay is not granted
  4. 4.Whether security was offered and where the balance of convenience lies

Key legal issues

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01

Whether the three-month delay in filing the application for stay disentitled the applicant to the discretionary relief

Holding

Although the application was filed more than three months after judgment, the appeal itself was noted timeously within 14 days, which weighed in the applicant's favour

Reasoning

The Court found the application was filed more than three months after the judgment delivered on 21st February 2019. However, the appeal was noted on 4th March 2019, within the 14-day window for noting appeals to the Court of Appeal, showing promptness and good faith. The delay therefore did not alone defeat the application, but the applicant still had to satisfy the substantive conditions for stay.

p. 2
02

Whether the applicant demonstrated substantial loss and that the appeal would be rendered nugatory

Holding

The applicant failed to demonstrate substantial loss or nugatory-ness; it offered bank security but did not show the claimants could not refund the decretal sum, and did not distinguish prior adverse decisions

Reasoning

The applicant offered bank security for the decretal sum, but did not demonstrate that the claimants would be unable to refund the sums if the appeal succeeded. Similar suits had been previously heard and determined by the High Court and ELRC, and the applicant did not distinguish those decisions in arguing high chances of success. The balance of convenience favoured claimants who waited over 17 years for terminal benefits.

p. 2
03

Where the balance of convenience lies

Holding

The balance of convenience favoured the claimants/respondents who had waited more than 17 years since 2003 to be paid their terminal benefits

Reasoning

The Court considered that the suit was originally filed in 2003 at the High Court and transferred to the ELRC in 2017. The claimants had waited over 17 years to enjoy the fruits of their judgment for duly earned terminal benefits. This tipped the balance of convenience in their favour and justified permitting payment of part of the decretal sum despite the pending appeal.

p. 2

Legal principles established

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  • A plausible and satisfactory explanation for delay is key to unlocking the court's discretion on applications for stay or extension of time
  • A judgment debtor who offers security but cannot show the decree-holder would be unable to refund the decretal sum has not demonstrated substantial loss

Court orders

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  1. 1.Order for stay of execution issued in respect of half (1/2) of the decretal sum only
  2. 2.The remaining half of the decretal sum to be paid to the Claimants/Respondents within 30 days, failing which the order for stay would lapse forthwith
  3. 3.Ruling delivered online with parties' consent, waiving compliance with Order 21 rule 1 of the Civil Procedure Rules

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Article 159(2)(d) and Article 48 of the Constitution; Section 18 of the Civil Procedure Act

Relief refused

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Stay of execution of the entire decretal sum pending appeal

The applicant did not demonstrate substantial loss or that the appeal would be rendered nugatory; the claimants are entitled to the fruits of their judgment

p. 2

Costs of the application

No costs order was pronounced in the judgment

Costs

No costs order made in the judgment; the application sought 'Costs be provided for' but the Court did not award costs

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.

Accordingly, the Court is not inclined to exercise its discretion in favour of the applicant in respect of the full decretal sum but only issue an Order for stay for the half (½) decretal sum, the rest to be paid to the Claimants/respondents within 30 days, failing which the Order for stay would lapse, forthwith.
p. 2Final orders - partial stay of execution
The applicant has therefore not shown it would suffer substantial loss if Orders for stay are not granted. The Claimants are entitled to enjoy the fruits of their judgment
p. 2Substantial loss and fruits of judgment
“A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour”
p. 1Explanation for delay in stay applications
The balance of convenience favours the claimant/respondents who have waited to be paid duly earned terminal benefits for more than 17 years since the year 2003, when they filed this suit at the High Court.
p. 2Balance of convenience

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 P.O. Nyamunga & 68 others v Maseno University [2020] KEELRC 183 (KLR)", Case Analysis (2020). ELRC Cause No. 338 of 2017 (formerly Kisumu High Court Civil Suit No. 8 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/183/eng@2020-11-27

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