[2021] KEELRC 1572 (KLR)
The court found that the Respondent had not demonstrated sufficient grounds to warrant a stay of execution of the consent judgment. The judgment was based on a binding consent between the parties, and the Respondent had previously indicated willingness to settle the decree. The Respondent failed to show that there...
Source-derived case information.
- Citation
- [2021] KEELRC 1572 (KLR)
- Parties
- Claimant: Job Bernard Makanga; Respondent: Multimedia University of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1827 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution declined
- Legal Topics
- Stay of Execution, Consent Judgment, Appeal Process, Gratuity Payment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Job Bernard Makanga
Claimant
Multimedia University of Kenya
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the Respondent has met the threshold for grant of stay of execution pending appeal.
- 2 Whether the existence of a consent judgment affects the grant of stay.
- 3 Whether the Respondent has demonstrated an arguable appeal or that the appeal would be rendered nugatory without stay.
Ratio Decidendi
The court found that the Respondent had not demonstrated sufficient grounds to warrant a stay of execution of the consent judgment. The judgment was based on a binding consent between the parties, and the Respondent had previously indicated willingness to settle the decree. The Respondent failed to show that there was an arguable appeal or that the appeal would be rendered nugatory if the stay was not granted. The court emphasized that if the Respondent was facing financial constraints, it should have sought staggered payments rather than a stay of execution. The application for stay was therefore declined, and costs were awarded to the Claimant.
Court Disposition
application for stay of execution declined
Orders
- The Application dated 14th June 2019 filed by the Respondent is declined.
- Costs to the Claimant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
CAUSE NUMBER 1827 OF 2014
BETWEEN
JOB BERNARD MAKANGA .................................................... CLAIMANT
VERSUS
MULTIMEDIA UNIVERSITY OF KENYA...........................RESPONDENT
RULING
1. The Respondent has filed a Notice of Motion dated 14th June 2019, seeking an order that, pending hearing and determination of the Respondent’s Intended Appeal at the Court of Appeal, execution of Judgment entered by this Court, on 29th March 2019, is stayed.
2. The Application is supported by the Affidavit of Mumbi Mwihurih, Respondent’s Legal Officer, sworn on 14th June 2019.
3. It is opposed through the Replying Affidavit of the Claimant, sworn on 1st July 2019.
4. Parties agreed on 4th February 2021, to have the Court consider and determine the Application based on the Affidavits above, and Submissions filed by the Parties. They confirmed filing of Submissions on 11th March 2021.
The Court Finds: -
5. The Respondent has not persuaded the Court that an order staying execution of Judgment, is merited.
6. The Respondent has indicated severally on the record, that it was willing to settle, and was waiting for funds to become available to settle the decree.
7. Judgment was anchored on a consent filed by the Parties. Parties agreed on everything including payment of gratuity. The Respondent’s Advocates are recorded to have informed the Court that the Respondent’s Council was meeting to finalize settlement.
8. It is noted that the Respondent filed an Application seeking to set aside consent Judgment, which was rejected by the Court on 29th March 2019, culminating in the decree whose execution, the Respondent is asking the Court to stay pending Appeal.
9. It was the ruling of the Trial Court, relying on the Court of Appeal decision in Specialized Engineering Limited v. Kenya Commercial Bank Limited [1988] e-KLR, that Parties recorded binding consent, and that the Respondent did not establish any of the tests for setting aside a consent order.
10. There is in the view of this Court a valid Judgment, resulting from the consent of the Parties, and which Judgment the Respondent has indicated in the past, its willingness, if not readiness, to fully settle. The Intended Appeal diverts from the consent and undertaking to settle. It has not been shown that there is an arguable Appeal. It has not been shown that if the order of stay is declined, the Appeal would be rendered nugatory. If the Respondent was enduring financial constraints and not ready to settle the decree immediately, it should have sought an order for staggered payments, instead of seeking to stay execution of a consent Judgment entered years ago.
IT IS ORDERED: -
a. The Application dated 14th June 2019 filed by the Respondent is declined.
b. Costs to the Claimant.
DATED, SIGNED AND RELEASED TO THE PARTIES AT NAIROBI, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 18TH DAY OF JUNE 2021.
JAMES RIKA
JUDGE