[2017] KEELRC 1601 (KLR)
The court found that reinstating the dismissed motion for stay of execution pending appeal would serve no practical purpose because the decretal sum had already been released to the Claimant and there was no application for redeposit of the same. Furthermore, the Respondent had not filed a Notice of Appeal or sought...
Source-derived case information.
- Citation
- [2017] KEELRC 1601 (KLR)
- Parties
- Claimant: Josephine Kirigo Kagwanja; Respondent: Waruhiu Construction Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause Cause185 of 2015
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Dismissal of Stay Pending Appeal
- Outcome
- Application dismissed.
- Judges
- MSA Makhandia
- Legal Topics
- Constructive Dismissal, Stay of Execution, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Kirigo Kagwanja
Claimant
Waruhiu Construction Ltd
Respondent
Procedural Posture
Stay Application / Ruling on Application to Set Aside Dismissal of Stay Pending Appeal
Legal Issues
- 1 Whether the Respondent's application to set aside the dismissal of the stay of execution motion should be granted.
- 2 Whether reinstating the dismissed motion for stay of execution serves any practical purpose after the decretal sum has been released to the Claimant.
- 3 Whether the absence of a Notice of Appeal or application to extend time for filing one affects the Respondent's application.
Ratio Decidendi
The court found that reinstating the dismissed motion for stay of execution pending appeal would serve no practical purpose because the decretal sum had already been released to the Claimant and there was no application for redeposit of the same. Furthermore, the Respondent had not filed a Notice of Appeal or sought extension of time to do so, undermining the foundation for any stay pending appeal. The court therefore dismissed the application, despite the Claimant's non-opposition, as the orders sought had been overtaken by events and would be merely academic.
Court Disposition
Application dismissed.
Orders
- The motion dated 16 November 2016 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 185 OF 2015
JOSEPHINE KIRIGO KAGWANJA CLAIMANT
V
WARUHIU CONSTRUCTION LTD RESPONDENT
RULING
1. Judgment was delivered in this Cause on 14 October 2016 wherein the Court found and held that the Claimant was constructively dismissed and ordered the Respondent to pay her Kshs 35,280/-.
2. The Respondent was aggrieved with the judgment and it moved Court on 26 October 2016 seeking stay of execution pending appeal.
3. The Court granted conditional stay at the ex parte hearing of the application and scheduled the inter partes hearing for 9 November 2016.
4. In the meantime, the Respondent deposited the decretal sum in compliance with the conditional stay.
5. When the motion was called out for hearing on 9 November 2016, both the Claimant and Respondent were not present in Court and the Court dismissed the motion seeking stay of execution pending appeal and at the same time directed that the monies deposited into Court be released to the Claimant. The monies, according to the record have been released.
6. On 18 November 2016, the Respondent moved Court again, seeking the setting aside of the orders dismissing the application for stay of execution pending appeal and reinstatement of the motion.
7. The Court directed that this latter application be served for inter partes hearing on 25 January 2017.
8. When this motion came up for arguments, the Claimant’s counsel informed the Court that she was not opposing the motion.
9. However, despite the position taken by the Claimant, the orders being sought by the Respondent have been overtaken by events and would serve no purposes because the decretal sum having been released to the Claimant and there being no application for redeposit of the same, reinstating the dismissed motion would be a mere academic exercise.
10. The Court also notes that despite the judgment having been delivered more than 3 months ago, no Notice of Appeal is on record and, equally no application to extend time for filing one has been filed.
11. The Court therefore declines the invitation by the Respondent in spite of the non-opposition by the Claimant and orders that the motion dated 16 November 2016 be dismissed with no order as to costs.
Delivered, dated and signed in Nakuru on this 24th day of March 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Ogega instructed by Munene Chege & Co. Advocates
For Respondent Mr. Maina instructed by Ikua, Mwangi & Co. Advocates
Court Assistants Nixon/Daisy