[2019] KECA 725 (KLR)
The Court found that the applicant had demonstrated an arguable point for appeal, which does not require the applicant to show that the appeal will necessarily succeed. The Court further held that if the stay is not granted, the intended appeal may be rendered nugatory. Therefore, the Court exercised its discretion...
Source-derived case information.
- Citation
- [2019] KECA 725 (KLR)
- Parties
- Applicant: The Clerk County Council of Lugari; Respondent: Josephat Mulongo Wekesa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 86 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed.
- Judges
- MSA Makhandia, GK Oenga
- Legal Topics
- Stay of Execution, Appeal Process, Arguable Case Standard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Clerk County Council of Lugari
Applicant
Josephat Mulongo Wekesa
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable point to warrant a stay of execution pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the applicant had demonstrated an arguable point for appeal, which does not require the applicant to show that the appeal will necessarily succeed. The Court further held that if the stay is not granted, the intended appeal may be rendered nugatory. Therefore, the Court exercised its discretion to grant the stay of execution pending the filing and hearing of the appeal, subject to the applicant filing the record of appeal within forty-five days, failing which the stay would lapse.
Court Disposition
Application for stay of execution pending appeal allowed.
Orders
- Stay of execution of the judgment and decree of the Employment and Labour Relations Court at Bungoma (Nduma J.) dated 1st December, 2017 granted pending appeal.
- Applicant to file the record of appeal within forty-five (45) days of the ruling; failure to do so will result in lapse of the stay orders.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: ASIKE MAKHANDIA, KIAGE & ODEK JJ.A.)
CIVIL APPLICATION NO. 86 OF 2018
BETWEEN
THE CLERK COUNTY COUNCIL OF LUGARI........APPLICANT
AND
JOSEPHAT MULONGO WEKESA.............................RESPONDENT
(Application for stay of execution pending appeal from the judgment and decree of the Employment and Labour Relations Court of Kenya at Bungoma (Nduma J.) dated 1st December, 2017in ELRC NO. 1 OF 2017(Formerly Kisumu Cause No. 3 OF 2017)
********************
RULING OF THE COURT
Whereas Mr. Ashitiva, learned counsel for the applicant is in court and ready to proceed with this matter, there is no appearance for or by the respondent though served.
Having considered the application and the replying affidavit sworn by the respondent on 30th November, 2018, we are of the view that the orders sought are merited.
As all that an applicant needs show is that he has an arguable point to canvas on appeal, which is not the same as one that must necessarily succeed, we are satisfied on that ground.
We think also that the intended appeal, if successful, may be rendered nugatory unless we exercise our discretion in favour of granting the stay orders sought. We grant them.
As the judgment sought to be appealed against was delivered on 1st December, 2017, we are not impressed that the applicant is yet to file the record of appeal. To urge it to a more proactive stance, we direct that it file the record of appeal within forty five (45) days of today failing which these stay orders shall lapse. Costs shall be in the intended appeal.
MADE at Kisumu this 21st day of May, 2019.
ASIKE MAKHANDIA
.......................................
JUDGE OF APPEAL
P. O. KIAGE
.....................................
JUDGE OF APPEAL
OTIENO-ODEK
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.