[2014] KEELRC 647 (KLR)
The court found that the applicant had not provided a draft memorandum of appeal, making it difficult to assess the arguability of the intended appeal. However, given the substantial decretal sum (KES 753,560) and the claimant's failure to demonstrate ability to refund the amount if the appeal succeeds, the court...
Source-derived case information.
- Citation
- [2014] KEELRC 647 (KLR)
- Parties
- Claimant: Charles Maina Munyua; Respondent: Victory Construction Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 753 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- conditional stay of execution granted pending appeal
- Legal Topics
- Stay of Execution, Appeal Process, Decretal Sum, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Maina Munyua
Claimant
Victory Construction Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent/applicant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
- 3 Whether the claimant/respondent has demonstrated ability to refund the decretal sum if the appeal succeeds.
Ratio Decidendi
The court found that the applicant had not provided a draft memorandum of appeal, making it difficult to assess the arguability of the intended appeal. However, given the substantial decretal sum (KES 753,560) and the claimant's failure to demonstrate ability to refund the amount if the appeal succeeds, the court held that the appeal could be rendered nugatory if stay is not granted. Balancing this with the claimant's right to enjoy the fruits of judgment, the court granted a conditional stay of execution, requiring the applicant to deposit the entire decretal amount with the court within 30 days, failing which the stay would lapse.
Court Disposition
conditional stay of execution granted pending appeal
Orders
- Stay of execution of the judgment and decree granted pending hearing and determination of the intended appeal.
- Applicant to deposit the entire decretal amount with the court within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 753 OF 2012
CHARLES MAINA MUNYUA ........................................................CLAIMANT
-VERSUS-
VICTORY CONSTRUCTION LIMITED ....................................RESPONDENT
Mr. Onyango for Respondent/Applicant
Mr. Ngala for Claimant/Respondent
RULING
An Application on Certificate of Urgency dated 4th October 2013 was filed by the Respondent/Applicant seeking interalia, an order for stay of execution of the judgment delivered on the 19th September 2013 and the resultant decree of the Court, pending the hearing and determination of the Appeal.
A Notice of appeal dated 20th September 2013 and filed on 20th September 2013 was attached to the Application.
Interim orders were granted exparte by Hon. Justice Maureen Onyango on 8th October, 2013. The Claimant/Respondent was directed to file a response within 14 days and both parties to file written submissions.
The interim orders were not extended on that date.
Meanwhile, the Claimant proceeded to execute the judgment and the decree of the Court necessitating an urgent application to be filed on 20th December, 2013 and Hon. Justice Rika, reinstated the interim orders for stay of execution pending the hearing and determination of this application.
The Applicant has not attached a draft memorandum of Appeal and it is difficult for the Court to evaluate whether or not the intended Appeal is arguable.
However, the decretal amount is in the sum of 753,560 and the appeal may be rendered nugatory in the event the Claimant is unable to repay the decretal sum if execution of the same is allowed at this stage.
It is apposite to note that the Claimant has not demonstrated ability to repay the same in the event the appeal is successful.
Having said that, it is right that the Claimant is able to enjoy the fruits of his judgment especially because he remains unemployed and therefore without income.
Accordingly, the judgment of the Court delivered on the 19th September, 2013 and the resultant decree of the Court is hereby stayed pending the hearing and determination of the intended Appeal.
The Applicant is however directed to deposit with the Court the entire decretal amount within 30 days from the date of this Ruling, failing which the order for stay of execution above shall be deemed expired.
Dated and Delivered at Nairobi this 21st day of February, 2014.
MATHEWS N. NDUMA
PRINCIPAL JUDGE