[2016] KEELRC 1662 (KLR)
The court found that while the grounds for the application were not particularly strong, the respondent had offered to deposit the full decretal sum in court as security. The court noted that the respondent did not allege that recovery of the decretal sum from the claimant would be impossible if the appeal...
Source-derived case information.
- Citation
- [2016] KEELRC 1662 (KLR)
- Parties
- Claimant: Harriet K. Muteshi; Respondent: Orthodox Development Savings and Credit Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 233 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- DI Wasike
- Legal Topics
- Stay of Execution, Security for Decree, Irreparable Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Harriet K. Muteshi
Claimant
Orthodox Development Savings and Credit Society Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the respondent will suffer substantial or irreparable loss if stay is not granted.
- 3 Whether security for due performance of the decree has been offered.
Ratio Decidendi
The court found that while the grounds for the application were not particularly strong, the respondent had offered to deposit the full decretal sum in court as security. The court noted that the respondent did not allege that recovery of the decretal sum from the claimant would be impossible if the appeal succeeded, but was concerned about loss if its property was carried away in execution. Balancing the interests of justice, the court granted a conditional stay of execution, requiring the respondent to deposit the decretal sum in court within fourteen days, failing which execution would proceed.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution granted on condition that the decretal sum of Kshs.506,251 be deposited in court within fourteen days from the date of the ruling and remain deposited pending the hearing and determination of the intended appeal.
- In default of deposit, execution to proceed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 233 OF 2014
HARRIET K. MUTESHI………………………………………….................................................…CLAIMANT
VERSUS
ORTHODOX DEVELOPMENT SAVINGS AND CREDIT SOCIETY LIMITED.…………….RESPONDENT
RULING
1. By an application dated 30th November, 2015 the respondent sought an order of stay of execution pending the hearing and determination of the intended appeal.
2. The application was supported by the affidavit of Patrick Iraro who deponed that the claimant’s lawyer had threatened to proceed with execution and if that proceeded the intended appeal would be rendered nugatory. He further stated that the respondent was willing to deposit the decretal sum in Court as security for the judgment.
3. The applicant did not attach a draft memorandum of appeal to at least demonstrate to the Court the chances of success of the intended appeal.
4. Consideration for grant of stay of execution are substantially contained in Order 42 of rule 6 of the Civil procedure Rules. The order provides (in paraphrase):-
No order for stay of execution shall be made under sub rule (1) unless (a) the Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
5. The applicant has averred that it will suffer irreparable loss and if the goods proclaimed are carried away by the auctioneer in execution of the decree of this Court. On the other hand the applicant has offered to deposit the decretal sum in Court pending the outcome of the intended appeal.
6. The decree of this Court was for Kshs.506,251/=. This is the amount the respondent is prepared to deposit in Court pending the outcome of the intended appeal. The respondent is only concerned that if its property proclaimed is carried away it will suffer irreparable loss. It does not allege that if the decretal sums is paid over to the claimant it would be impossible to recover the same if the appeal succeeds.
7. The Court is not very impressed with the grounds upon which the application is brought but will nonetheless order a stay of execution on condition that the decretal sum be deposited in Court within fourteen days from todays date and so remain deposited pending the hearing and determination of the intended appeal. In default execution to proceed.
8. It is so ordered.
Dated at Nairobi this 19th day of February 2016
Abuodha J. N.
Judge
Delivered this 19th day of February 2016
In the presence of:-
………………………………………………………….…for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge