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ELRCPartially AllowedNot stated in judgment

Florence Kavosa Wanyanga v Kenya National Examination Council [2021] KEELRC 797 (KLR)

Employment and Labour Relations Court
7 October 2021
642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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An employer seeking to pause paying a judgment must pay half now and secure the rest, or the stay lapses.

What this practically means

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Executive summary

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The respondent, Kenya National Examination Council, applied by notice of motion dated 1st March 2021 for stay of execution of the judgment and decree delivered on 26th January 2021, by which the court had found that the claimant's retirement from her employment on 20th April 2015 was unfair and had awarded her compensation and costs. The application, supported by the affidavit of Befley Bisem, corporation secretary and deputy director legal services, was premised on a filed Notice of Appeal and an offer of a bank guarantee for the decretal sum as security. The parties agreed on a stay in principle but disagreed on the nature of the security: the respondent, as a government agency, wished to furnish only a bank guarantee, while the claimant sought payment of half the judgment amount with the balance secured by bank guarantee, noting the matter had been pending since 2016, that she had retired, that costs were untaxed and no decree issued, and that the respondent had not exhibited draft grounds of appeal. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principle that a successful party should not be deprived of the fruits of judgment, citing the authorities relied upon. Observing that the respondent had not indicated whether the appeal targeted the whole or part of the judgment and had attached no draft memorandum, the court granted a conditional stay: the respondent to release half the judgment sum to the claimant and secure the other half by bank guarantee from a reputable financial institution within 45 days, failing which the stay conditions would lapse. Costs were awarded to the claimant.

Questions the Court framed

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

  1. 1.Whether stay of execution of the judgment and decree of 26th January 2021 should issue pending the intended appeal
  2. 2.On what conditions as to security the stay should be granted

Key legal issues

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01

Conditions for stay of execution pending intended appeal

Holding

Stay was agreed between the parties but the security conditions were contested; the court granted a conditional stay requiring half the judgment sum to be released and the balance secured by bank guarantee within 45 days.

Reasoning

The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principle that a successful litigant should not be deprived of the fruits of judgment. Because the respondent did not attach a draft memorandum or specify whether the appeal was against the whole or part of the judgment, the court had no material to assess the appeal's prospects, and so balanced the respondent's interest in pursuing the appeal with the claimant's need to enjoy the award by ordering partial payment plus security.

p. 1

Legal principles established

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  • In considering an application for stay of execution, the court does not make orders that would deprive a successful party of the fruits of her judgment.

Court orders

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  1. 1.Stay of execution granted on condition that the respondent release half the judgment sum to the claimant
  2. 2.The other half of the judgment sum shall be secured by a bank guarantee from a reputable financial institution pending the hearing of the intended appeal
  3. 3.The release and security shall be done within 45 days, failing which the condition for stay shall lapse
  4. 4.Costs to the claimant

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

Relief refused

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Stay conditioned only on a bank guarantee for the whole decretal sum (as sought by the respondent)

Without material showing the nature and grounds of the intended appeal, the claimant's interests required partial payment of the judgment sum

p. 1

Costs

Costs to the claimant.

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, stay of execution agreed upon, the respondent shall release half the judgement sum to the claimant and the other half shall be secured by a bank guarantee from a reputable financial institution pending the hearing of the intended appeal.
p. 2Final orders - conditional stay of execution
The release and security shall be done within the next 45 days and failure to which, the condition for stay shall lapse.
p. 2Time limit and lapse of stay conditions
It is trite that the Court in considering the application does not necessarily make orders that would deprive a successful party the fruits of her judgement.
p. 1Principle governing stay of execution
The respondent in urging the instant application has not outlined whether the intended appeal is against the whole or part of the judgement. No draft memorandum is attached.
p. 1Failure to demonstrate the nature of intended appeal

Issues in the judgment

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minor

Judgment refers to the deponent of the supporting affidavit inconsistently with the general narrative and contains typographical errors ('bank quanta', 'bank quadrate', 'stay of execution sae')

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, "Florence Kavosa Wanyanga v Kenya National Examination Council [2021] KEELRC 797 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/797/eng@2021-10-07

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