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ELRCPartially AllowedNot stated in the judgment text

Alexander Irungu Wanjiru v Registered Trustees of the Sisters of Mercy (Kenya) t/a “Mater Misericordie Hospital [2021] KEELRC 1790 (KLR)

Employment and Labour Relations Court
30 April 2021
3,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan hospital won a stay of execution on an unfair termination award, but only by paying half the decree and giving a bank guarantee.

What this practically means

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Executive summary

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This ruling by Maureen Onyango J of the Employment and Labour Relations Court, Nairobi, dated 30th April 2021, determined an application by the Respondent/Judgment Debtor (a hospital) seeking extension of a stay of execution of a judgment of 29th May 2020 in which the Claimant was awarded Kshs.6,575,125 for unlawful termination. The Applicant, having filed a notice of appeal, argued it could not verify the Claimant's financial means and feared inability to recover the decretal sum, offering a Bank Guarantee as security. The Claimant opposed, contending the appeal was frivolous, that he was not a man of straw (owning two Ruiru parcels valued at Kshs.2,500,000 each and having secured post-termination employment), and sought conditional release of three quarters of the decretal sum with cash security. The court considered Order 42 Rule 6 of the Civil Procedure Rules and the stay principles in Butt v Rent Restriction Tribunal, Silverstein v Chesoni and related authorities. It found the Applicant had unexplained lapses - no draft grounds of appeal and an application filed over two months after judgment - and had not demonstrated substantial loss, noting that land is good security and that the Applicant, a premium hospital, could pay if the appeal failed. The court granted stay of execution pending the intended appeal, but conditionally: release of 50% of the decretal sum to the Respondent, a Bank Guarantee valid until appeal determination, compliance within 30 days, with costs of the application to the Applicant/Judgment Debtor in any event.

Questions the Court framed

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

  1. 1.Whether the Applicant meets the criteria for grant of the orders sought (stay of execution pending intended appeal)

Key legal issues

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01

Whether the Applicant satisfied the criteria for stay of execution pending appeal

Holding

Stay granted but on conditions, because the Applicant delayed unexplainedly and did not demonstrate substantial loss; the Respondent's good security (land titles) and the Applicant's capacity to pay meant the appeal would not be rendered nugatory

Reasoning

The court exercised its discretion balancing both parties: the Applicant's unexplained lapses (no grounds of appeal on record, application filed over two months after judgment) weighed against the Respondent's right to enjoy his decree. The Respondent offered two Ruiru parcels valued at Kshs.2,500,000 each, sufficient security. The Applicant, a premium hospital, could pay should the appeal fail. A conditional stay with 50% release and a Bank Guarantee served justice to both sides.

p. 4
02

Whether the Respondent's intended cross appeal affected the stay application

Holding

It did not; the cross appeal concerns service gratuity not awarded in the judgment

Reasoning

The court agreed with the Respondent that his cross appeal, seeking an award of service gratuity not addressed in the judgment, could not prevent the Applicant from honouring the judgment and was irrelevant to the stay analysis.

p. 4

Legal principles established

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  • Stay of execution requires demonstration of substantial loss that would render the appeal nugatory, without unreasonable delay, and security for due performance
  • The right of appeal must be balanced against the successful party's right to enjoy the fruits of the judgment
  • A bank guarantee is good security for stay of execution provided it remains valid until determination of the appeal

Court orders

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  1. 1.Stay of execution of the judgment and decree granted pending the filing, hearing and determination of the Applicant's intended appeal
  2. 2.Stay conditional upon the Applicant releasing to the Respondent 50% of the decretal sum
  3. 3.Stay conditional upon the Applicant providing a Bank Guarantee that will remain valid and binding until the appeal is determined
  4. 4.Compliance with the two conditions within 30 days
  5. 5.Applicant (Judgment Debtor) to bear the costs of the application in any event

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(1) and (2) of the Civil Procedure Rules; Rule 5(2) of the Court of Appeal Rules (noted); the court that delivered the decree entertained the stay application

Relief refused

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Unconditional stay of execution as sought (extension of the stay granted at judgment to run until determination of the appeal without conditions)

The Applicant failed to explain lapses in filing the application more than two months after judgment and did not demonstrate substantial loss that would render the appeal nugatory

p. 3

The Applicant's contention that the Respondent's offered land security should be disregarded as unrealisable

Court found land is good security and the Applicant did not substantiate the claim of difficulty in realisation

p. 4

The Respondent's request that 75% of the decretal sum be released to him with the balance in a joint interest-earning account in cash

The court instead ordered release of 50% with a Bank Guarantee for the balance

Costs

The Applicant (Judgment Debtor) shall bear the costs of this application in any event

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.

That stay of execution of the judgment and decree herein be and is hereby granted pending the filing, hearing and determination of the Applicant’s intended appeal.
p. 4Final orders – stay granted
That the stay of execution shall be conditional upon: i. The Applicant releasing to the Respondent 50% of the decretal sum.
p. 4Final orders – conditional release of half the decretal sum
The Applicant (Judgment Debtor) shall bear the costs of this application in any event
p. 4Final orders – costs
What the court should consider is whether there would be substantial loss as to render the appeal nugatory, should the appeal succeed.
p. 4Test for substantial loss in monetary decrees
The court has wide discretion in granting stay of execution but such discretion is to be exercised judiciously, after considering the specific circumstances of the parties in the matter.
p. 3Judicial discretion in stay applications

Issues in the judgment

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minor

The name of the Respondent/Decree Holder and the Applicant are not given in full anywhere in the judgment text; the parties are referred to only by role

minor

The case number of this suit/application is not stated in the judgment text

minor

Jurisdictional basis is ambiguous: Rule 5(2) of the Court of Appeal Rules is recited although the application appears to be before the trial court under Order 42 Rule 6

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, "Alexander Irungu Wanjiru v Registered Trustees of the Sisters of Mercy (Kenya) t/a “Mater Misericordie Hospital [2021] KEELRC 1790 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1790/eng@2021-04-30

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