[2014] KEELRC 541 (KLR)
The court found that the application for stay was filed late and was not supported by any tender or offer of security, except for a casual remark regarding a possible deposit. The court noted that the reasons given for the delay, including ongoing discussions and the court's relocation, were insufficient and not...
Source-derived case information.
- Citation
- [2014] KEELRC 541 (KLR)
- Parties
- Applicant: Beatrice Nyawira Munene; Applicant: Regina Kivondo; Respondent: Bata Shoe Company (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 399 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Review
- Outcome
- application dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Stay of Execution, Review of Judgment, Timeliness of Applications, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Nyawira Munene
Applicant
Regina Kivondo
Applicant
Bata Shoe Company (K) Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Review
Legal Issues
- 1 Whether the respondent/applicant is entitled to an order of stay of execution pending determination of the review application.
- 2 Whether the application for stay was made timeously and in good faith.
- 3 Whether the respondent/applicant has offered or tendered security as required by law.
Ratio Decidendi
The court found that the application for stay was filed late and was not supported by any tender or offer of security, except for a casual remark regarding a possible deposit. The court noted that the reasons given for the delay, including ongoing discussions and the court's relocation, were insufficient and not substantiated by evidence of efforts to trace the file. The review application, while appearing to have some substance, was not considered likely to succeed. The court held that the application was devoid of merit and dismissed it with costs, allowing the claimants to proceed with execution of the decretal sum.
Court Disposition
application dismissed with costs
Orders
- The application for stay is dismissed with costs to the claimants.
- The claimants are at liberty to proceed to execute for the decretal sum.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 399 OF 2011
BEATRICE NYAWIRA MUNENE
REGINA KIVONDO……………….……………………………………………CLAIMANTS
VERSUS
BATA SHOE COMPANY (K) LIMITED…………..……………….…………RESPONDENT
RULING
The application is the Notice of Motion application dated 17th February 2014 by the Respondent/Applicant. It seeks an order of stay pending hearing and determination of the Review Application. It was submitted by Mr. Masese for the Applicant that the Review raises substantial issues and that if the execution proceeds but Court comes to a different finding the Review will be rendered nugatory. He submitted the Claimant would not suffer any prejudice.
The Claimant/Respondent was opposed to the Application and had filed grounds dated 13th March 2014. The main attack was that the Respondent/Applicant was guilty of laaches and did not deserve the orders sought. Mr. Nyabena for the Claimant/Respondent submitted that the judgment was on 6th July 2013 and the Review application was filed on 17th February 2014. This, it was submitted was an afterthought and was only sought after execution commenced.
It was submitted a party should come to Court in good time.
The Respondent/Applicant argued that the format used was an oversight and sought amendment. The late filing was attributed to discussions which had been ongoing as well as the shift of the Court from NSSF to Milimani Commercial Courts. He stated the court will not be sitting in appeal over its judgment if it reviews the case. He submitted that the court could order a deposit in Court if the sum was substantial.
The principles for grant of stay are well established. There should be either a proposed and viable appeal or review; secondly there should be a tender of security or offer to furnish security required. The application for stay also should be made timeously. In this case it’s admitted that the application was filed rather late. It is not disputed that the Court moved from NSSF to Milimani Commercial Courts. There is no evidence of the efforts to trace the file if at all it was missing. The Review at perusal seems like it has substance but it is in evaluation not one the court thinks will succeed. The cause was determined in July 2013, the Respondent now suddenly states there was new evidence they would wish to adduce.
Under Rule 32 the provisions are clear. The evidence should have been unavailable to the party seeking to rely on it. There has been no tender of security nor an offer to tender it except for a casual remark that if the amount was 2 million or so the Claimant would say “deposit it in Court”.
From the foregoing the Application is devoid of merit and is fit for dismissal. Without delving into the execution, if parties agree to hold off execution and one turns around and proceeds then that would amount to sharp practice which must be deprecated. As the application is dismissed with costs the Claimant will be at liberty to proceed to execute for the decretal sum
Orders accordingly.
Dated and Delivered at Nairobi this 2nd day of April 2014
NZIOKI WA MAKAU
JUDGE