[2019] KEELRC 1509 (KLR)
The court found that the present application for stay of execution was a repetition of an earlier application that had already been determined and dismissed. Entertaining the same application again would amount to an abuse of the court process. Consequently, the court declined to consider the merits of the...
Source-derived case information.
- Citation
- [2019] KEELRC 1509 (KLR)
- Parties
- Claimant: Eric Muthama Nduu; Respondent: Jayveer Enterprises Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1957 of 2012
- 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, Abuse of Process, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Muthama Nduu
Claimant
Jayveer Enterprises Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal meets the requirements under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the present application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the present application for stay of execution was a repetition of an earlier application that had already been determined and dismissed. Entertaining the same application again would amount to an abuse of the court process. Consequently, the court declined to consider the merits of the application and dismissed it with costs to the claimant.
Court Disposition
application dismissed with costs
Orders
- The application dated 4th February, 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 1957 OF 2012
ERIC MUTHAMA NDUU.....................................CLAIMANT
VERSUS
JAYVEER ENTERPRISES LIMITED..........RESPONDENT
RULING
1. By an application dated 4th February, 2019 the respondent/applicant sought to stay of execution of the orders of this court’s judgement delivered on 10th January, 2017 pending appeal already lodged. The applicant argued that if the stay was not granted the respondent stands to suffer irreparable loss and the appeal would be rendered nugatory.
2. Counsel for the applicant further argued that the application was brought without unreasonable delay and further that the respondent was prepared to deposit the decretal sum in a joint interest account in the name of advocates counsel further argued that the respondent would not be able to recover the decretal sum should the appeal be successful.
3. Mr Musyoki for the claimant argued that the applicant had not met the requirements of order 42 rule 6 of the Civil Procedure Rules on stay of execution. According to counsel the applicant had benefitted from the services of the claimant and further that the applicant had alleged that they were unable to pay the entire decretal sum. Counsel further complained that the application was made at the execution stage.
4. This court had entertained a similar application seeking stay of execution of the judgement of the court and setting aside the said judgement and that the suit be heard de novo. By its ruling delivered on 7th December 2018, the court refused that application.
5. The present application is therefore an abuse of the court process hence the court will not delve into its merit or otherwise.
6. The same is hereby dismissed with costs.
7. It is so ordered.
Dated at Nairobi this 17th day of May 2019
Abuodha J. N.
Judge
Delivered this 17th day of May 2019
Abuodha J. N.
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.