[2016] KEELRC 1466 (KLR)
The court held that the order made by Marete, J was a negative order dismissing the application and the entire suit, with each party to bear its own costs. Such an order does not direct any party to do or refrain from doing anything and is therefore not capable of execution. As a result, there is nothing to stay,...
Source-derived case information.
- Citation
- [2016] KEELRC 1466 (KLR)
- Parties
- Applicant: Kenya National Union of Nurses; Respondent: Kenyatta National Hospital Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 756 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Negative Orders, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Nurses
Applicant
Kenyatta National Hospital Board
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there is an executable order to warrant a stay of execution pending appeal.
- 2 Whether a negative order dismissing a suit can be stayed.
Ratio Decidendi
The court held that the order made by Marete, J was a negative order dismissing the application and the entire suit, with each party to bear its own costs. Such an order does not direct any party to do or refrain from doing anything and is therefore not capable of execution. As a result, there is nothing to stay, and the application for stay of execution pending appeal must fail.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 756 OF 2013
KENYA NATIONAL UNION OF NURSES………………………..........................CLAIMANT
VERSUS
KENYATTA NATIONAL HOSPITAL BOARD………………………………...RESPONDENT
RULING
1. The Claimant/Applicant filed a Notice of Motion dated 03rd March 2015 on the 13th March 2015 seeking an order to stay the ruling and orders of Marete, Jdated 20th February 2015 and delivered on 25th February, 2015.
2. The Hon. Marete, J had made the following orders;
That the intended interested party, KUDHEIHIA be and is hereby enjoined as a party to this suit.
That this application and the entire suit be and is hereby dismissed.
That each party bears its own costs of this case.
3. The Application is supported by the grounds set out on the face of the application and by an Affidavit sworn on 3rd March 2015 by Seth Panyako, the General Secretary of the Claimant/Applicant. The Application is opposed vide grounds of opposition dated 24th March 2015 and filed on 25th March 2015. The issue for determination is whether there is anything to stay since Hon. Marete J simply dismissed the entire suit.
4. The court relies on the decision of the Court of Appeal in Singh Dhiwa –Vs- Keshavjisinav Shah [2008] eKLRwhere the Court found;
“The 2nd prayer in the application is for stay (of execution) of the orders of the superior court made on 18thDecember 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgement with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & applied Sciences –Vs- Orange & Others [1970] KLR 63 at page 66 paragrah L)”. also see Fisel Amin Jan Mohammed T/A Dunyia Forwarders -Vs- Shamvi Trading Co Ltd [2014] eKLR.
5. This case is on all fours with the present matter and the court finds that Marete J made a negative order dismissing the application and the entire suit. The Judge did not direct any of the parties to do anything except for each party to bear their own costs.
6. Accordingly, the application for stay of execution pending appeal is dismissed with costs.
Dated and delivered in Nairobi this 1st day of April, 2016.
MATHEWS N. NDUMA
PRINCIPAL JUDGE