[2017] KEELRC 899 (KLR)
The Court found that the Respondent failed to comply with the condition for stay of execution, namely, payment of the decretal sum into Court by the stipulated date. The explanation provided for non-compliance, being financial incapacity, was not sufficient to warrant the exercise of the Court's discretion in her...
Source-derived case information.
- Citation
- [2017] KEELRC 899 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers; Respondent: Silver Hotel, Naivasha
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 169 of 2013
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- MSA Makhandia
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Advocate Neglect, Court Discretion, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers
Applicant
Silver Hotel, Naivasha
Respondent
Procedural Posture
Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
Legal Issues
- 1 Whether the Respondent has provided sufficient grounds to set aside the judgment delivered on 3 May 2016.
- 2 Whether the Respondent has complied with the conditions for stay of execution as previously ordered by the Court.
- 3 Whether the failure of the Respondent's advocate to appear constitutes a valid basis for setting aside the judgment.
Ratio Decidendi
The Court found that the Respondent failed to comply with the condition for stay of execution, namely, payment of the decretal sum into Court by the stipulated date. The explanation provided for non-compliance, being financial incapacity, was not sufficient to warrant the exercise of the Court's discretion in her favour. Furthermore, the Court was not persuaded by the Respondent's claim that her advocate lacked instructions, as the advocate had previously filed a response in the matter. The Court held that the Respondent had not demonstrated sufficient grounds to set aside the judgment or to justify the continuation of the stay of execution. Consequently, the application was dismissed...
Court Disposition
application dismissed with costs
Orders
- The motion dated 13 July 2017 is dismissed with costs to the Claimant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 169 OF 2013
(Originally Nairobi Cause No. 1423 of 2011)
KENYA UNION OF DOMESTIC, HOTELS,
EDUCATIONAL INSTITUTIONS,
HOSPITALS & ALLIED WORKERS CLAIMANT
v
SILVER HOTEL, NAIVASHA RESPONDENT
RULING
1. The Court delivered a judgment on 3 May 2016.
2. On 14 July 2017, the Respondent moved Court under certificate of urgency seeking stay of execution and the setting aside of the judgment.
3. The Court, on the same day allowed stay of execution on condition that the sum of Kshs 816,674/50 being the decretal sum be paid into Court on or before 19 July 2017 pending the inter partes hearing of the motion on 20 July 2017.
4. When the motion was placed before Court today, the Claimant, despite service was not in Court and the Court allowed the Respondent to proceed with the application.
5. The Court has noted that the condition upon which stay was granted was not complied with.
6. The Respondent has attempted to explain the non-compliance through a Supplementary Affidavit filed in Court this morning by stating she is not in a financial position to raise the decretal sum.
7. The Respondent in the main application posits that her then advocate on record did not appear in Court for hearing on 18 January 2016 and when she sought explanations, the advocate denied having received instructions to defend her.
8. The said firm of advocates filed a Response in Court on 20 September 2011, and without further details, the Court is unable to accept the contention that the advocate had no instructions.
9. If indeed the Respondent instructed the advocate on record at the time of hearing to defend her, and he failed, the Respondent has options to consider.
10. The orders sought by the Respondent are discretionary.
11. There was an advocate on record during the hearing. The Respondent has also failed to sufficiently explain the failure to comply with the condition upon which the stay of execution was granted.
12. In the circumstances the Court decline to exercise its discretion in favour of the Respondent and orders that the motion dated 13 July 2017 be dismissed with costs.
Delivered, dated and signed in Nakuru on this 20th day of July 2017.
Radido Stephen
Judge
Appearances
For Claimants KUDHEIHA (absent)
For Respondent Mr. Wairegi instructed by Wairegi Kiarie & Associates
Court Assistants Nixon/Martin