[2017] KEELRC 774 (KLR)
The court found that the respondent failed to demonstrate the existence of an arguable appeal or that the intended appeal would be rendered nugatory if stay of execution was not granted. The claimants, having served the respondent for many years and retired, were lawfully entitled to the retirement benefits awarded...
Source-derived case information.
- Citation
- [2017] KEELRC 774 (KLR)
- Parties
- Claimant: Jotham Kanja Mwai; Claimant: Joseph Kisanya Indiazi; Respondent: Musiara Ltd. (Governors Camp)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2099 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Post Judgment
- Outcome
- application for stay of execution declined with costs to the claimants
- Legal Topics
- Retirement Benefits, Collective Bargaining Agreement, Stay of Execution, Appeal Intention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jotham Kanja Mwai
Claimant
Joseph Kisanya Indiazi
Claimant
Musiara Ltd. (Governors Camp)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Post Judgment
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the claimants are lawfully entitled to retirement benefits under the applicable Collective Bargaining Agreement.
- 3 Whether the respondent will suffer irreparable loss if stay is not granted.
Ratio Decidendi
The court found that the respondent failed to demonstrate the existence of an arguable appeal or that the intended appeal would be rendered nugatory if stay of execution was not granted. The claimants, having served the respondent for many years and retired, were lawfully entitled to the retirement benefits awarded by the court under the applicable Collective Bargaining Agreement. The balance of convenience favored immediate payment of the retirement benefits to the claimants. Consequently, the application for stay of execution was declined with costs to the claimants.
Court Disposition
application for stay of execution declined with costs to the claimants
Orders
- The application for stay of execution is declined.
- Costs of the application are awarded to the claimants.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2099 OF 2014
JOTHAM KANJA MWAI …….…………….…....1ST CLAIMANT
JOSEPH KISANYA INDIAZI ………………..…. 2ND CLAIMANT
VERSUS
MUSIARA LTD. (GOVERNORS CAMP)……......RESPONDENT
M/S Guserwa for respondent/applicant
Claimants in person
RULING
1. By a notice of motion application filed on 19th May 2017, the respondent/applicant seeks an order for stay of the execution of the judgment of the court delivered on 28th April 2017.
2. The application is supported on the grounds set out in the notice of motion to wit;
3. That the respondent/applicant intend to appeal the decision of the court in that the trial Judge erred in holding that the claimants were entitled to payment of benefits accruing to unionsable employees when they were not unionsable.
4. That the respondent/applicant will suffer irreparable loss if a stay of execution is not granted and is ready and willing to provide reasonable security for the judgment.
5. The application is opposed vide a replying affidavit of the 1st claimant stating that the application has no merit and it be dismissed with costs. That the applicant only seeks to delay justice. That the claimants worked faithfully for the respondent for twenty (20) and twelve (12) years respectively until retirement on 30th September 2014 and are lawfully entitled to their retirement benefits awarded by the court.
Determination
6. The award of the court comprises of retirement benefits due and owing to them by fact of a Collective Bargaining Agreement applicable to all unionsable employees of the respondent.
7. In the court’s considered view, the respondent has no arguable appeal and has also failed to demonstrate that the intended appeal if successful would be rendered nugatory if stay of execution of judgment of the court is not granted.
8. The balance of convenience favours the payment of retirement benefits to the claimants having served the respondent for many years till retirement.
9. The application for stay of execution is declined with costs to the claimants.
Dated, signed and delivered at Nairobi this 25th day of August 2017.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE