National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza [2014] KECA 469 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM:   MWERA,  MURGOR  & J. MOHAMMED, JJ.A.)

CIVIL  APPLICATION NO. NAI . 55 OF 2014 (UR 42/2014)

BETWEEN

NATIONAL  WATER CONSERVATION & PIPELINE CORPORATION….......APPLICANT

AND

JAYNE KANINI MWANZA……...………...…………..................……...…….RESPONDENT

(Being an Application for Stay  of Execution from the Judgment of the High  Court of Kenya  at Nairobi (Nzioka, J.) dated 23rdJanuary,2014

in

INDUSTRIALCOURT CAUSE NO.25  OF 2012

************************

RULING  OF THE  COURT

The applicant corporation filed  a notice of motion dated 20th March, 2014 under Rule 5(2)(b)of  the  rules  of  this  Court seeking   stay  of execution  of  the  judgment   delivered   on  23rd   January,  2014   by  the Industrial Court.

Mr.  W.  Kilonzo, appearing with  Ms.  B.  Mainafor the applicant, told  us  that  on  17th  December,   2008   the  applicant  employed   the respondent  on   a  fixed   term   contract  for  services expiring on 16 th December,  2011.  When  the  contract  expired, the  applicant  was  not inclined  to renew it. Consequently,  the respondent filed a claim  in  the Industrial Court  praying  for  declarations,  inter  alia,  that  her  second contract was still subsisting and  that it had  not been terminated by the applicant.

After hearing the parties, the Industrial  Court (Nzioki wa  Makau, J.)found  for the respondent and  ordered, among  other reliefs, that the applicant do  pay  her Sh.750,000/= in lieu  of  3  months  notice and  a further Sh.918,000/= as compensation.  The appellant felt aggrieved and hence its desire to obtain stay of execution pending filing and disposal of the intended appeal.   In this kind of application, the applicant is obliged to satisfy the Court that he/she has an arguable appeal and  also that if the stay order is refused that appeal will be rendered nugatory.

Mr.  Kilonzosubmitted that the applicant will argue on appeal that where a term  contract comes  to an  end  by  effluxion  of time  one party, here  the  respondent/employee, cannot  argue  that  the  contract  still subsists  as  she  claimed,  even  after  she  was  served  with a  letter  of termination of services.   Neither can it be assumed  that failure to communicate termination of services amounts to a “constructive renewal of contract” as the learned judge found.

As to whether the intended appeal  would  be rendered nugatory in case we do not grant the stay order sought, yet  it succeeds  in  the end, counsel told us  that  the applicant would  be hard put to recover  some Sh.1. 6  million from the respondent who in  her replying affidavit had  not demonstrated to the Court her capacity to refund such  a sum.

Mr. Ongicho, learned counsel for the respondent, opposed the application arguing that the respondent applied in writing for renewal of her  contract  as stipulated  in  the  letter of  appointment. That  the applicant did not respond to that application, only  to communicate after the contract  period  had run  out  that  the  sought  renewal had   been declined.  Mr.  Ongichoagreed  with the learned judge,  that accordingly and in such circumstances, the respondent’s contract stood renewed and thus an arguable appeal had not been made out.  He concluded that the respondent had deponed  in her replying affidavit that she was possessed of sufficient assets and could  be in a position to refund the decretal sum in the event that the appeal was successful.

Having  considered the foregoing rival arguments, we are of the view that the applicant has made out, not a frivolous but an arguable appeal, namely, whether when  a fixed  term contract expires, and  one party does not communicate to the other about the likelihood  of  not renewing it, that should be deemed to be an automatic renewal of the contract.  That point, even  as  it stands alone, is sufficient  to consider issuing a stay order.

However, the next bar to be surmounted is whether the appeal will be rendered nugatory in  case a stay order is refused and  yet it succeeds in the end.   On this point our view is that Sh.1. 6  million is a substantial sum  which the applicant, a public corporation, may  not easily  recover from  the  respondent  who  has  failed  to  demonstrate  or  indicate  her financial resources to meet a demand  to repay.

In  sum, we grant the order of stay of execution sought until  the intended appeal, which Mr.  Kilonzotold us he could  soon file and serve, is  finally determined. The  respondent  will  bear  the costs of this application.

Datedand  delivered at Nairobi this 11thday  of July, 2014

J. W. MWERA

……………………….

JUDGE OF APPEAL A.K. MURGOR

…………………………

JUDGE OF APPEAL J. MOHAMMED

………………………..................

JUDGE OF APPEAL

I certify that this is a true copy of the original

/jkc

DEPUTY REGISTRAR