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Court of Appeal throws out Barclays’ application to appeal out of time order to pay ex-workers

THE Court of Appeal has thrown out Barclays Bank’s application to appeal out of time against part of the judgment of August 23, 2011, which ordered them to pay 42 former employees redundancy packages and other allowances from date of separation.

The bank applied for stay of execution of the judgment and for leave to appeal out of time.

The former employees, Jeremiah Njovu and 41 others, had sued the bank in the Industrial Relations Division of the High Court and judgment was passed in their favour.

The court awarded the former employees redundancy packages at the rate of four months’ salary for every year served or 4.7 x number of years served, whichever was greater, payment of the difference between the redundancy package and the package already paid and payment of salaries and all allowances from the date of separation until payment of the package, costs and that interest to be paid at the short term deposit rate from the date of filling the complaint to August 31, 2010.

Being dissatisfied with the judgment, the bank launched an appeal in the Supreme Court which was dismissed on June 21, 2018 on grounds of procedural technicalities.

The bank then applied before the Industrial Relations Division for leave to appeal out of time and stay of execution of judgment but were unsuccessful.

Hence, the renewed application before the Court of Appeal.

In the Court of Appeal, Barclays Bank indicated that they did not intend to wholesomely appeal against the judgement of August 23, 2011 but only the portion which awarded the former employees salaries from the dates of separation via redundancy in 2003/204 to date of payment.

They also argued that the appeal was meritorious because it discloses novel questions.

On their application for stay, Barclays submitted that there was a real and imminent threat of execution as the former employees had taken the position that the judgment sum was quantifiable with no need for further assessment.

The bank submitted that execution on the bank would adversely affect its internal operations and the economy at large, due to the huge sums involved.

The bank also submitted that it was highly likely that the appeal would succeed, adding however, that the former employees do not have sufficient assets to refund the judgment debt, if it was paid pending appeal.

Ruling in the matter, Court of Appeal judge Judy Mulongoti said it was mind boggling that the bank sought leave to appeal out of time in the High Court (IRD) and renewed the application before the Court of Appeal.

“To me, this application is misconceived. As canvassed by the respondents’ counsel, recourse should be to the Supreme Court via a notice of motion. Only the Supreme Court can re-open the case depending on circumstances as elucidated in the Access Bank case supra,” she said. “The applicant should advance their arguments that the appeal was not heard on its merit before that court. The case was already in the Supreme Court, leave to appeal had already been granted and utilised by the applicant…by the judgment of August 2011, the applicant was informed of its right to appeal within 30 days, which it exercised. The appeal was lodged in the Supreme Court sometime in September 2011 under appeal number 107/2012 which later became appeal number 140/2015, which was subsequently dismissed as alluded to above.”

Judge Mulongoti said the bank’s appeal was dismissed for failure to obtain leave of the Supreme Court to refile the record of appeal out of time.

“It was not dismissed for failure to [obtain] leave to appeal from the lower court. The applicant offended the rules of the Supreme Court, any attempt to cure the defect should lie in that court whose decisions are final,” she said.

The judge agreed with the former employees’ lawyer that she had no jurisdiction to grant the applications sought by the bank because doing so would be tantamount to re-opening or re-litigating a matter, which was dismissed by the Supreme Court.

“Only that court (Supreme Court) can do so,” she said.

Judge Mulongoti said consequently: “I am inclined to dismiss the applications as I clearly have no jurisdiction to entertain them. It is therefore, pointless to consider the stay and other issues that arose. Suffice to state there is no appeal pending for a stay to be granted and for me to consider the prospects of success. I accordingly refuse to grant the applications and, dismiss them accordingly. The ex parte order for stay is hereby discharged. Costs follow the event, to be taxed failing agreement.”

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