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ELRCPartially AllowedNotice of Motion dated 29th February 2021 (arising from CMCC No. 3516 of 2006)

Kenya Wine Agencies Limited v Lenny Kimathi Murungi [2021] KEELRC 1433 (KLR)

Employment and Labour Relations Court
24 March 2021
2,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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An employer appealing an employment award can pause execution of the judgment if it moves fast, shows risk of loss, and deposits the full decretal amount as security.

What this practically means

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Executive summary

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Kenya Wine Agencies Limited, the appellant, moved the Employment and Labour Relations Court by Notice of Motion dated 29th February 2021 under sections 12(3) and 13 of the Employment and Labour Relations Court Act, 2011 and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment of E. M. Kagoni PM delivered on 26th January 2021 in CMCC No. 3516 of 2006, which awarded the respondent Ksh.2,415,838.50 in salary, Ksh.100,000 nominal damages, Ksh.50,000 general damages, interest and costs. The appellant argued the appeal had merit, that the respondent resided in Uganda with unknown means so recovery would be impossible if the appeal succeeded, and offered to deposit the entire decretal sum in a joint interest-earning account. The respondent did not wholly oppose stay but sought partial release of Ksh.500,000 to transport his goods from Uganda, citing special circumstances of his abandonment there after deployment. The court found the application made without delay, security offered, and that stay preserves the appeal from being rendered nugatory while balancing the parties' interests. It declined the request for partial release of transportation costs, holding the trial court had dismissed that claim and it could not be revived on a stay application. Stay was granted subject to deposit of the decretal sum into a joint interest-earning account within a structured timetable, with the appeal to be heard on priority basis and costs to abide the appeal.

Questions the Court framed

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

  1. 1.Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6
  2. 2.Whether the application was made without unreasonable delay
  3. 3.Whether the respondent's claim for transportation costs could be revived on the stay application

Key legal issues

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01

Conditions for stay of execution pending appeal

Holding

Stay granted where the application was made without delay, substantial loss was shown and security was offered

Reasoning

The court applied Order 42 Rule 6, finding the appellant moved immediately upon lapse of the 30-day stay granted by the trial court, offered to deposit the entire decretal sum as security, and that refusal would render the appeal nugatory. The discretion was exercised balancing the appellant's right of appeal against the respondent's interest in the fruits of the judgment.

p. 3
02

Revival of a dismissed claim on a stay application

Holding

A claim dismissed by the trial court cannot be revived on a stay application

Reasoning

The respondent sought partial release of the decretal sum for transportation of his goods from Uganda. The trial court had dismissed that claim as not merited and parties being bound by pleadings. The ELRC held that whether transport costs are due is contested and must await the full hearing of the appeal.

p. 3

Legal principles established

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  • The purpose of a stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while weighing the successful litigant's right to the fruits of the judgment

Court orders

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  1. 1.Stay of execution of the judgment of 26th January 2021 granted subject to security
  2. 2.The appellant shall deposit the total decretal sum into a joint interest earning account in the names of both advocates
  3. 3.The respondent shall identify the banking institution within seven (7) days
  4. 4.The appellant shall deposit the decretal sum within 30 days
  5. 5.If the respondent fails to identify the bank, the appellant shall identify it and deposit within 45 days
  6. 6.If the appellant fails to deposit, stay shall lapse on the 45th day
  7. 7.The appeal shall be heard on priority basis
  8. 8.Costs shall abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court
CMCC No. 3516 of 2006
Jurisdiction invoked
Sections 12(3) and 13 of the Employment and Labour Relations Court Act, 2011 and Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Partial release of the decretal sum to the respondent (Ksh.500,000 for transportation of goods from Uganda)

The transportation claim was dismissed by the trial court and cannot be revived on a stay application before the appeal is heard

p. 3

Costs

Costs shall abide the outcome of the appeal.

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.

a. The appellant shall cause the deposit of the total decretal sum into a joint interest earning account held in the names of both advocates for the parties;
p. 3final orders - security for due performance
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
p. 3purpose of stay of execution
This claim having been declined by the trial court cannot be revived within the instant application and before the court has heard the merits of the main appeal.
p. 3dismissed claim cannot be revived on stay application

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, "Kenya Wine Agencies Limited v Lenny Kimathi Murungi [2021] KEELRC 1433 (KLR)", Case Analysis (2021). Notice of Motion dated 29th February 2021 (arising from CMCC No. 3516 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1433/eng@2021-03-24

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