[2018] KEELRC 2238 (KLR)
The court found that the respondent failed to demonstrate any arguable appeal or sufficient grounds to warrant a stay of execution of the judgment. The respondent did not attempt to set aside the ex-parte judgment and relied solely on contested averments in its memorandum of response, which were not supported by...
Source-derived case information.
- Citation
- [2018] KEELRC 2238 (KLR)
- Parties
- Claimant: Edward Odongo Owiti; Respondent: Salama Hotel Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 293 of 2015
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DI Wasike
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Burden of Proof, Appeals, Employment Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Odongo Owiti
Claimant
Salama Hotel Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent has demonstrated sufficient grounds for stay of execution of the judgment pending appeal.
- 2 Whether the respondent has an arguable appeal with a high chance of success.
Ratio Decidendi
The court found that the respondent failed to demonstrate any arguable appeal or sufficient grounds to warrant a stay of execution of the judgment. The respondent did not attempt to set aside the ex-parte judgment and relied solely on contested averments in its memorandum of response, which were not supported by evidence or subjected to cross-examination. The court emphasized that pleadings alone, without supporting evidence, are insufficient to justify a stay. Consequently, the application for stay of execution was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 293 OF 2015
EDWARD ODONGO OWITI...........................CLAIMANT
VERSUS
SALAMA HOTEL LIMITED.....................RESPONDENT
RULING
1. By a motion dated 23rd February, 2017 the respondent sought a stay of execution of the court’s judgement delivered on 10th February, 2017 pending intended appeal.
2. The application was based on the grounds among others that the respondent was aggrieved by the court’s judgement and had filed a Notice of Appeal against the said judgement and further that the appeal was arguable and had a high chance of success.
3. The draft memorandum of appeal attached to the application set out the grounds of appeal which included that:
a. The learned judge erred in entering judgement in favour of the claimant.
b. The learned judge erred in failing to appreciate the triable issues raised in the appellant’s response to the statement of claim.
c. The learned judge erred in holding that the claimant had proved the case on a balance of probabilities.
4. This matter proceeded ex-parte after the court was reasonably convinced that the respondent was duly served. In its judgement the court observed that the onus of keeping employment records was on the employer. If it was true as the respondent alleged that the claimant was not its employee, nothing prevented them from coming to court and put the claimant to task. That did not happen. The claimant’s averments therefore remained uncontroverted.
5. The respondent as would have been expected never attempted to set aside the ex-parte judgement. They now want to appeal against the judgement based on contested averments in their memorandum of response. Averments in pleading remain as such until supported by evidence and subjected to cross- examination. The court is not bound to consider them in the absence of any supporting evidence.
6. In the circumstance the court is not persuaded that the respondent has any arguable appeal to merit a stay of the courts judgement pending appeal.
7. The application is therefore dismissed with costs.
8. It is so ordered.
Dated at Nairobi on this 16th day of February 2018
Abuodha J. N.
Judge
Delivered on this 16th day of February 2018
In the presence of:-
……………………………...…… for the claimant
………………………………. for the Respondent
Abuodha J. N.
Judge