[2019] KEELRC 1966 (KLR)
The court found that the respondent had demonstrated sufficient cause for the grant of stay of execution, considering the imminent risk of closure of its business and detriment to students if execution proceeded. However, the court balanced the interests of both parties by conditioning the stay on the respondent...
Source-derived case information.
- Citation
- [2019] KEELRC 1966 (KLR)
- Parties
- Claimant: Fred J. Owuor (alias) Fred O.R.J. Owuor; Respondent: TEC Institute of Management Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 19 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- stay of execution granted on condition of security
- Judges
- MN Nduma
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred J. Owuor (alias) Fred O.R.J. Owuor
Claimant
TEC Institute of Management Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the decree and judgment pending appeal.
- 2 Whether the application for stay was brought without undue delay.
- 3 Whether security for the performance of the decree should be provided as a condition for stay.
Ratio Decidendi
The court found that the respondent had demonstrated sufficient cause for the grant of stay of execution, considering the imminent risk of closure of its business and detriment to students if execution proceeded. However, the court balanced the interests of both parties by conditioning the stay on the respondent depositing the entire decretal sum in an interest-earning joint account held by counsel for both parties within 14 days. Failure to comply would result in the lapse of the stay and execution would proceed. The court applied established principles requiring security for the due performance of the decree and exercised its discretion to ensure justice is served to both parties.
Court Disposition
stay of execution granted on condition of security
Orders
- Stay of execution is granted provided the respondent deposits the entire decretal sum in an interest earning account in the joint names of counsel for the claimant and counsel for the respondent within 14 days of this ruling.
- If the respondent fails to deposit the decretal sum within 14 days, the order for stay will lapse and execution will issue.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
E. & L. R. CASE NO. 19 OF 2014
(Before Hon. Justice Mathews N. Nduma)
FRED J. OWUOR (alias) FRED O.R.J. OWUOR...............CLAIMANT
VERSUS
TEC INSTITUTE OF MANAGEMENT LIMITED......RESPONDENT
RULING
1. Application dated 6th August 2018 and filed on 6th August 2018 seeks stay of execution of the decree and judgment of the court delivered by Justice Maureen Onyango on 4th May 2017 pending the hearing and determination of Appeal.
2. The application is based on grounds set out on the face of the application to wit that proclamation of the respondent’s goods/tools of trade has already taken place on 31st July 2018 and the items are to be removed and sold in satisfaction of the decree on 7th August 2018.
3. That the respondent’s business risk closure to the detriment of students if proclamation is not lifted.
4. The application is opposed via grounds filed on 3rd July 2018. That the application has been brought after inordinate delay with an intent to defeat ends of justice.
5. That the applicant has not offered security for the performance of the decree nor has it demonstrated that it has an arguable appeal that is likely to be rendered nugatory.
6. I have considered the competing arguments in this matter. Having regard to the requirements for grant of stay of execution pending Appeal set out in Masisi Mwita vs Damaris Wanjiku Njeri (2016) eKLR; and Butt vs Rent Restriction Tribunal (1982) KLR 417.
The court makes the following orders:-
7. Stay of execution is granted as prayed in the application provided the respondent deposits entire decretal sum in an interest earning account in the joint names of counsel for the claimant and counsel for the respondent within 14 days of this Ruling failing which the order for stay will lapse and execution to issue.
Ruling Dated, Signed and delivered this 21st day of March, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Angu for Claimant/Respondent
M/S Momanyi for Respondent/Applicant
Chrispo – Court Clerk