[2023] KEELRC 2065 (KLR)
The court found that the Respondent had not exhibited a draft Memorandum of Appeal, depriving the court of any means to assess whether the intended appeal was arguable or had reasonable prospects of success. The Respondent's own affidavit indicated that it was seeking to settle the decree pending taxation, and...
Source-derived case information.
- Citation
- [2023] KEELRC 2065 (KLR)
- Parties
- Applicant: Lydia Ondiso Akumu; Applicant: Tony Opicho Wanyama; Respondent: Independent Electoral & Boundaries Commission (IEBC)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1709 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution declined; interim stay vacated; costs to claimants
- Judges
- J Rika
- Legal Topics
- Stay of Execution, Appeal Procedure, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Ondiso Akumu
Applicant
Tony Opicho Wanyama
Applicant
Independent Electoral & Boundaries Commission (IEBC)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the Respondent is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the Respondent has demonstrated an arguable appeal with reasonable prospects of success.
- 3 Whether the application for stay is a genuine pursuit of appeal or a delay tactic.
Ratio Decidendi
The court found that the Respondent had not exhibited a draft Memorandum of Appeal, depriving the court of any means to assess whether the intended appeal was arguable or had reasonable prospects of success. The Respondent's own affidavit indicated that it was seeking to settle the decree pending taxation, and taxation had already taken place. The court concluded that the application for stay was not a genuine pursuit of an appeal but rather a means to delay settlement of the judgment. Accordingly, the application for stay of execution was declined, and the interim order for stay was vacated.
Court Disposition
application for stay of execution declined; interim stay vacated; costs to claimants
Orders
- The application dated March 22, 2023 filed by the Respondent is declined.
- Interim order for stay of execution of judgment/decree is vacated.
Full Case Text
Judgment text and source record
30 paragraphs
Akumu & another v Independent Electoral & Boundaries Commission (IEBC) (Cause 1709 of 2016) [2023] KEELRC 2065 (KLR) (18 August 2023) (Ruling)
Neutral citation: [2023] KEELRC 2065 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1709 of 2016
J Rika, J
August 18, 2023
Between
Lydia Ondiso Akumu
1st Claimant
Tony Opicho Wanyama
2nd Claimant
and
Independent Electoral & Boundaries Commission (IEBC)
Respondent
Ruling
1. Judgment was delivered in favour of the Claimants, on November 30, 2022.
2. The Respondent filed a Notice of Appeal dated December 13, 2022, and requested for certified proceedings on the same date.
3. The Party-Party Bill of Costs was taxed by the Deputy- Registrar on August 3, 2023.
4. The Respondent filed an Application dated March 22, 2023, seeking stay of execution pending Appeal.
5. It is supported by the Affidavit of Chrispine Owiye, Legal Officer of the Respondent.
6. Chrispine states that: The Respondent was dissatisfied with the Judgment; lodged a Notice of Appeal; applied for certified proceedings; taxation would pave way for execution; if stay is not granted, the Respondent would suffer irreparable loss; and, the Intended Appeal is arguable with reasonable prospects of success.
7. Chrispine also states that, the Respondent has been seeking to have the decretal sum settled, pending taxation of costs.
8. The Court granted interim order of stay of execution on July 28, 2023. Parties had been directed to file and exchange their written submissions, on April 20, 2023. They confirmed their compliance, on July 28, 2023.
The Court Finds: 9. There is no draft Memorandum of Appeal exhibited by the Respondent, and the Court has no means of assessing the ground advanced by the Respondent, that the Intended Appeal is arguable, with reasonable prospects of success.
10. Chrispine states that the Respondent was seeking to settle the decree pending taxation. Taxation has taken place. The Respondent seems to have made the Application, seeking time to settle the decree, rather than in a genuine pursuit of an Appeal, at the Court of Appeal. A Party intending to propose to the Court a mode of settlement of its Judgment / Decree, ought not to come to Court, under the guise of an Intended Appeal. Ideally such a Party ought to engage its counterpart, on the mode of payment.
11. The Application is declined.
12. Interim order for stay of execution of Judgment/ Decree is vacated.
It Is Ordered:-a.The Application dated March 22, 2023 filed by the Respondent is declined.b.Interim order for stay of execution of Judgment/ Decree is vacated.c.Costs to the Claimants.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY VIA E-MAIL, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS 2020, THIS 18TH DAY OF AUGUST 2023. JAMES RIKAJUDGE