[2016] KEELRC 756 (KLR)
The court found that the applicant failed to demonstrate that the claimant would be unable to repay the decretal sum if the appeal succeeded. The applicant did not provide evidence that the claimant was a person of straw or lacked the means to refund the amount. Furthermore, the court noted that the application for...
Source-derived case information.
- Citation
- [2016] KEELRC 756 (KLR)
- Parties
- Applicant: Judith Atieno Omboho; Respondent: Faith Homes of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1290 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Unlawful Termination, Compensation for Dismissal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Atieno Omboho
Applicant
Faith Homes of Kenya
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
- 3 Whether the applicant has demonstrated sufficient cause for the grant of stay.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the claimant would be unable to repay the decretal sum if the appeal succeeded. The applicant did not provide evidence that the claimant was a person of straw or lacked the means to refund the amount. Furthermore, the court noted that the application for stay was filed after a significant delay and that the applicant did not assert that the intended appeal had good prospects of success. The court concluded that the intended appeal would not be rendered nugatory if stay was not granted and that the claimant was entitled to enjoy the fruits of her judgment. Consequently, the court declined to exercise its discretion in favour of...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1290 OF 2011
JUDITH ATIENO OMBOHO……......................................CLAIMANT
VERSUS
FAITH HOMES OF KENYA..…………………………RESPONDENT
RULING
1. Application dated 10th March 2016 and filed on even date seeks to stay execution of the judgement of Nduma J delivered on 18th December 2015.
2. A notice of appeal was filed on 22nd December 2015. The applicant states that the intended appeal will be rendered nugatory if the stay of execution is not granted and that it is ready and willing to comply with such reasonable conditions the court may deem fit. That the claimant has no capacity to repay the Kshs 80,750 awarded to him.
3. The Respondent filed a replying affidavit on 27th June 2016 opposing the application on grounds that the application is an afterthought since it has been brought about four (4) months from the date the Notice of Appeal was filed.
4. That the grounds contained in the draft memorandum of appeal do not disclose an arguable appeal and the applicant has no possibility of success. The respondent prays that the court orders the applicant to deposit the decretal sum of Kshs 80,750 in court.
Determination
5. The award by the court comprised of unpaid salary for work done,payment in lieu of one month notice and compensation equivalent to six (6) months’ salary for the unlawful and unfair termination of employment.
6. The claimant is a teacher by profession and the applicant has not demonstrated that she is a person of straw and would be unable to repay the decretal sum if the appeal was successful.
7. It is my considered view that the intended appeal will not be rendered nugatory if the order for stay of execution is not granted. The claimant deserves to enjoy the fruits of her judgement and the court therefore declines to exercise its discretion in favour of the applicant especially in view of the fact that the applicant does not state in the notice of motion and supporting affidavit that the intended appeal has good prospects of success.
8. Application is dismissed with costs.
Dated and delivered at Nairobi this 2nd day of September, 2016.
MATHEWS N. NDUMA
PRINCIPAL JUDGE