[2014] KEELRC 1097 (KLR)
The court found that the applicants had filed a Notice of Appeal and that the application for stay of execution was made without unreasonable delay. The court exercised its discretion to grant the stay, conditional upon the applicants depositing the entire decretal sum in a joint interest earning account in the...
Source-derived case information.
- Citation
- [2014] KEELRC 1097 (KLR)
- Parties
- Claimant: Maurine Achieng; Respondent: Satish K. Shah
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 19'a' of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- HS Wasilwa
- Legal Topics
- Stay of Execution, Appeal Procedure, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurine Achieng
Claimant
Satish K. Shah
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether adequate security for the due performance of the decree has been provided.
Ratio Decidendi
The court found that the applicants had filed a Notice of Appeal and that the application for stay of execution was made without unreasonable delay. The court exercised its discretion to grant the stay, conditional upon the applicants depositing the entire decretal sum in a joint interest earning account in the names of both parties' advocates within 30 days. Failure to comply would entitle the respondent to proceed with execution. The court applied the requirements of Order 42 rule 6(2) of the Civil Procedure Rules, balancing the interests of both parties and ensuring security for the due performance of the decree.
Court Disposition
application for stay of execution allowed with conditions
Orders
- Stay of execution granted on condition that the applicants deposit the entire decretal sum in a joint interest earning account held in the names of the applicant/applicants counsel and respondent within 30 days.
- In default of deposit, execution to proceed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 19'A'/2013
(Before Hon. Justice Hellen Wasilwa on 17th June, 2014)
MAURINE ACHIENG ….................................................. CLAIMANT
-VERSUS-
SATISH K. SHAH ..................................................... RESPONDENTS
R U L I N G
The application before court is the one dated 9. 4.2013. It was filed by the respondent applicants herein who seek orders for stay of execution pending hearing and determination of the appeal they have preferred. The applicants have brought this application under S. 3A of the CPA Cap 21 Laws of Kenya and High Court (Practice & Procedure) Rules 1, 2 & 3 of the Judicature Act Chapter 8 Laws of Kenya and all enabling Provisions of the Law. It is the applicants contention that they are dissatisfied with the judgment of this court and have preferred an appeal before the Court of Appeal. They fear that the respondent may execute the judgment against them if the stay is not granted. The application is supported by the supporting affidavit of Godfrey Nathan Kitiwa and they ask the court to allow the application.
The respondent opposed this application. She filed her grounds of opposition in person dated 28th April 2014 and it is her contention that the application lacks merit and is an afterthought. Order 42 rule 6(2) of the Civil Procedure Rules provides that:-
“No order of stay of execution shall be made under subrule (1) unless;
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant ---”
The test then is whether to grant the prayers sought as provided for under the above order. This order sought is discretionary exercise and in exercising my discretion, and there being proof that the applicants have filed a Notice of Appeal, I allow the application on the condition that the applicants deposits the entire decretal sum in a joint interest earning account held in the names of the applicant/applicants counsel and respondent within 30 days. In default execution to proceed.
HELLEN WASILWA
JUDGE
17/6/2014
Appearances:-
Lusweti for respondent claimants present
Busienei h/b Chepkwony for respondent present
CC. Wamache