[2015] KEELRC 1453 (KLR)
The court found that the appellant failed to provide any material evidence to challenge the respondent's ability to refund the decretal sum in the event the appeal succeeded. The respondent demonstrated gainful employment and capacity to refund. Furthermore, the grounds of appeal were found to be weak and lacking in...
Source-derived case information.
- Citation
- [2015] KEELRC 1453 (KLR)
- Parties
- Appellant: Hunters Ship Chandlers & General Contractors; Respondent: Francis Ochumbo Mbuya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution refused
- Judges
- J Rika
- Legal Topics
- Stay of Execution, Appeal Procedure, Burden of Proof, Ability to Refund Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hunters Ship Chandlers & General Contractors
Appellant
Francis Ochumbo Mbuya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the respondent has the ability to refund the decretal sum if the appeal succeeds.
- 3 Whether the grounds of appeal disclose an arguable case.
Ratio Decidendi
The court found that the appellant failed to provide any material evidence to challenge the respondent's ability to refund the decretal sum in the event the appeal succeeded. The respondent demonstrated gainful employment and capacity to refund. Furthermore, the grounds of appeal were found to be weak and lacking in substantial legal or factual issues, especially in the absence of the lower court's proceedings. Consequently, the court held that the appellant had not satisfied the requirements for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The application for stay was therefore refused, and the interim stay previously granted was lifted, allowing the...
Court Disposition
application for stay of execution refused
Orders
- Stay of execution is refused.
- The interim stay of execution given at the High Court is lifted, and the respondent is at liberty to execute.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CIVIL APPEAL NUMBER 3 OF 2014
BETWEEN
HUNTERS SHIP CHANDLERS & GENERAL CONTRACTORS …...…. APPELLANT
AND
FRANCIS OCHUMBO MBUYA …………...........................….........…….. RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Mr. Owino Advocate instructed by Angelo Owino & Company Advocates for the Appellant
Ms. Osino Advocate instructed by P.A. Osino & Company Advocates for the Respondent
RULING
The Appellant, through an Application filed on 13th October 2014 at the High Court in Mombasa, seeks an order for Stay of Execution.
The file was transferred to the Industrial Court by the High Court on 5th November 2014.
Judgement in the Lower Court was read on 5th February 2013 for the principal amount of Kshs.80,000, costs and interest in favour of the Respondent against the Appellant.
It is not clear from the Appellant's papers, which particular Officer read the Judgment. Paragraph 2 of the Supporting Affidavit sworn on 13th October 2014 indicates Judgment was delivered before PM M.K. Mwangi. The Memorandum of Appeal refers to the Judgment and Decree of Hon. J. Gandani. The Proceedings and Judgment of the Court below, are not available in the Appellant's papers.
The Advocates agreed to have the Application for Stay of Execution disposed of by way of written submissions.
Upon a careful examination of the Application, Affidavits and Submissions filed by the Parties, the Court Finds and Orders:-
1. Judgment was entered in favour of the Respondent against the Appellant for the Principal Sum of Kshs.80,000, costs and Interest.
2. The Respondent submits he is gainfully employed as a Casual Labourer, earning Kshs.20,000 per month and would not fail to refund the Appellant the decretal sum, if the Appeal succeeds.
3. The Court has not seen any material from the Appellant, to discount the Respondent's ability to repay the decretal sums in event the Appeal succeeds.
4. There are only 3 grounds in the Draft Memorandum of Appeal. Those grounds appear to this Court, in the absence of the Lower Court's Proceedings, very weak grounds. There are no recondite matters of law, or weighty matters of fact revealed in the sketchy Memorandum of Appeal, as to enable this Court say there is an arguable Appeal.
IT IS ORDERED:-
(a) Stay of Execution is refused
(b) The interim stay of execution given at the High Court is lifted, and the Respondent placed at liberty to execute.
(c) Costs in the Appeal.
Dated and delivered at Mombasa this 12th day of February 2015.
James Rika
Judge