[2021] KEELRC 1340 (KLR)
The court found that the respondent failed to make a candid and full disclosure of its financial position, as the bank statement provided did not conclusively demonstrate inability to deposit the decretal sum. The court inferred that the respondent likely had other undisclosed bank accounts and had not met the...
Source-derived case information.
- Citation
- [2021] KEELRC 1340 (KLR)
- Parties
- Applicant: Kenya Hotels & Allied Workers Union; Respondent: Praying Mantis Limited (Octopus Club)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 129 of 2013
- Procedural Posture
- Stay Application / Ruling on Motion for Review of Stay Conditions
- Outcome
- motion dismissed with costs
- Legal Topics
- Stay of Execution, Review of Court Orders, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels & Allied Workers Union
Applicant
Praying Mantis Limited (Octopus Club)
Respondent
Procedural Posture
Stay Application / Ruling on Motion for Review of Stay Conditions
Legal Issues
- 1 Whether the respondent should be permitted to deposit a title deed as security instead of the decretal sum for stay of execution.
- 2 Whether the respondent demonstrated inability to deposit the decretal sum as ordered by the court.
Ratio Decidendi
The court found that the respondent failed to make a candid and full disclosure of its financial position, as the bank statement provided did not conclusively demonstrate inability to deposit the decretal sum. The court inferred that the respondent likely had other undisclosed bank accounts and had not met the threshold for the exercise of judicial discretion to substitute the cash deposit with a title deed. Consequently, the application to review the stay conditions was dismissed.
Court Disposition
motion dismissed with costs
Orders
- The motion filed on 19 March 2021 is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 129 OF 2013
KENYA HOTELS & ALLIED WORKERS
UNION.....................................CLAIMANT
VERSUS
PRAYING MANTIS LIMITED (OCTOPUS
CLUB)..................................RESPONDENT
RULING
1. In a judgment delivered on 13 November 2020, the Court awarded some 5 Grievants terminal dues, interests and costs.
2. Praying Mantis Ltd (the Respondent) was not satisfied, and on 12 March 2021, it filed a Motion seeking stay of execution pending hearing and determination of an intended appeal (among other orders).
3. The Court dealt with the Motion ex-parte and granted an interim stay of execution pending an inter-partes hearing on the condition that the decretal sum of Kshs 2,019,068/- is deposited into Court within 7-days.
4. The condition did not satisfy the Respondent, and on 22 March 2013, it filed another Motion seeking orders:
1. …
2. This Honourable Court be pleased to review its orders issued on the 16 March 2021 by permitting the Respondent/applicant to deposit the title deed of its land parcel Kisumu/Kogony/193 in Court as a substitute for depositing the decretal sum of Kshs 2,019,068 as a precondition of stay pending the hearing and determination of the intended appeal.
3. The costs of this application be provided.
5. The Union caused a replying affidavit sworn by its Nyanza branch Secretary to be filed on 15 April 2021 in opposition to the Motion. This prompted the Respondent’s Managing Director to file a supplementary affidavit on 26 April 2021.
6. The Respondent filed its submissions on the Motion on 26 April 2021, while the Union filed its submissions on 17 May 2021.
7. The Court has considered the Motion, affidavits and submissions.
8. In the supporting affidavit, the Respondent’s Managing Director merely asserted that it was not in a position to deposit the decretal sum in Court.
9. When the Union’s branch secretary filed the replying affidavit deposing that the Respondent had not demonstrated inability to deposit the decretal sum into Court, the Respondent filed a supplementary affidavit introducing a copy of a bank statement from 10 January 2020 to 12 March 2021.
10. The Court has keenly looked at the bank statement, and the highest amount deposited in the account during the period was Kshs 76,860/-.
11. Further, the statement does not demonstrate that it was the one being used to pay the Grievants salaries during the term of their employment.
12. The inference which the Court can draw is that the Respondent has other bank accounts which it has not disclosed.
13. The Respondent was asking for an exercise of the Court’s discretion. It did not make a candid disclosure.
14. In light of the foregoing, the Court declines to allow the Motion filed in Court on 19 March 2021. It is dismissed with costs.
Delivered through Microsoft teams, dated and signed in Kisumu on this 30th day of June 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Union Mr Ngame, Industrial Relations Officer
For Respondent Mr Oloo instructed by Bruce Odeny & Co. Advocates
Court Assistant Chrispo Aura