[2022] KEELRC 398 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

ELRC CAUSE NO. 188 OF 2017

JACOB RONOH LAGATT................................................................................CLAIMANT

VERSUS

BOARD OF MANAGEMENT, KAGAKI SCHOOL.................................RESPONDENT

RULING

1. This ruling is in respect of the Respondent/applicant’s application dated 1st December, 2021, filed under certificate of urgency on even date via the firm of Rodi, Orege and Company advocates pursuant to Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions seeking the following orders;

1) Spent.

2) Spent

3) That pending the response of the Deputy registrar/Taxing master and the intended reference by the Applicant, this Honourable Court be pleased to grant a stay of execution of the Ruling on the Claimant’s party and party Bill of costs delivered on the 19th October, 2021 and all consequential Orders thereto.

4) That costs of this Application be provided for.

2. The application is supported by the grounds on the face of the application and the affidavit sworn on 1st December, 2021 by Professor Miriam Kinyua, one of the Respondent’s Directors and based on the following grounds: -

(a) That a party to party Bill of costs was drawn by the Claimant at the sum of Kshs.96,610 and filed before this Court for taxation. Subsequently grounds of opposition were filed in response to the said Bill of costs and a ruling was delivered on the 19th October, 2021 taxing the Bill of costs at Kshs 88,810.

(b) That a Notice of Objection dated 1st November, 2021 was filed by the Applicant herein under paragraph 11(1) of the Advocates Remuneration Order objecting to what he calls “excessive award”. The Notice was then served upon the Claimant/Respondent herein.

(c) While the parties were awaiting the Taxing master’s direction and or ruling, the Claimant/Respondent instructed Lifewood Traders Auctioneers to execute the Bill of costs. The Auctioneers took out warrants of attachment and sale dated 29th November, 2021 and proclaimed the Applicants property which are to be sold in 7 days.

(d) That the Applicant is apprehensive that its property will be sold to recover the costs that are still in dispute and pending the decision of the taxing master.

(e) The Applicant therefore urged this Court to allow the application in the interest of justice and stated that the Respondent would not be prejudiced in any way.

3. In opposing the application,Gladys Achieng Ndeda,the advocate ceased of the conduct of this matter, swore a replying affidavit dated 7th December, 2021 on the grounds that the application incompetent and an abuse of Court process on the basis that the Ruling of the taxing master is sound. She then urged this Court to disallow this Application.

4. The Application herein was disposed of by way of written submissions with the Applicant filing on the 20th January, 2022 while the Respondent filed on the 16th December, 2021.

Applicant’s Submissions.

5. The Applicant submitted mainly on the fact that the Claimant/Respondent’s replying affidavit was not signed and argued that failure to sign an affidavit was fatal as it has the effect of making the affidavit fatally defective. It then relied on the case of Gideon Sitelu Konchellah V Julius Lekakeny Ole Sunkuli & 2 others [2018] eklr.

6. The Applicant also submitted that they requested reasons for the taxation which reasons are yet to be given to it by the taxing master and therefore that the matter is pending for determination before the taxing master and to continue with execution would be prejudicial to them in the event that their objection is considered and a ruling given in their favour.

7. The Applicant urged this Court to stay execution till the decision of the taxing master is rendered.

Respondent’s Submissions.

8. The Respondent on the other hand submitted that, for stay to be granted all the 3 conditions of stay stated under Order 42 Rule 6 of the Civil Procedure Rules must be satisfied. He reinforced his argument by citing the case of re estate of Michael Kiarii Njoroge (deceased) [2019] eklr.

9. The Respondent submitted that the application herein was filed more than 2 months from the date when the taxing master rendered its decision without affording this Court an explanation/reason as to the delay as envisaged under Rule 33 of this Court’s Rules, therefore that the delay was inordinate in the circumstances.

10. Accordingly, it was submitted that the Applicant has failed to demonstrate all the requirements pre-requisite to grant of stay of execution Orders and therefore the application herein ought to be dismiss with costs to the Claimant/ Respondent.

11. I have examined the submissions and averments of the parties herein. The applicant herein seeks stay orders or execution of Claimant’s Party Bill of Costs.

12. This bill was taxed and a Ruling delivered on 19/10/2021. There is no indication on record that execution has commenced. That as it may be I direct that stay of execution be allowed on condition that the amount taxed be deposited in court within 30 days with effect from the date of this Ruling pending the filing and determination of any intended reference by the applicant.

13. Costs in the cause.

RULING DELIVERED VIRTUALLY THIS 24TH DAY OF MARCH, 2022.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:-

Awuor for Claimant – present

Kabalika for Respondent – present

Court Assistant Fred