[2016] KEELRC 1826 (KLR)
The court found that the decretal sum awarded to the claimant was substantial and that, if paid out prior to the determination of the appeal, it would be difficult for the respondent to recover the funds should the appeal succeed, resulting in substantial loss. The application for stay was made without undue delay,...
Source-derived case information.
- Citation
- [2016] KEELRC 1826 (KLR)
- Parties
- Applicant: Professor Mutuma Mugambi; Respondent: Kenya Methodist University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 221 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal, subject to provision of security.
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Appellate Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Professor Mutuma Mugambi
Applicant
Kenya Methodist University
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has demonstrated substantial loss may result unless the order is made.
- 3 Whether the application was made without unnecessary delay.
Ratio Decidendi
The court found that the decretal sum awarded to the claimant was substantial and that, if paid out prior to the determination of the appeal, it would be difficult for the respondent to recover the funds should the appeal succeed, resulting in substantial loss. The application for stay was made without undue delay, and the applicant demonstrated willingness to provide security for the due performance of the decree. The court exercised its discretion to grant a stay of execution, balancing the need to preserve the respondent's right of appeal with the claimant's interest in the fruits of judgment, and imposed a condition that the applicant furnish a bank guarantee for the decretal sum...
Court Disposition
Stay of execution granted pending appeal, subject to provision of security.
Orders
- Stay of execution of the judgment dated 26th August 2015 and delivered on 27th August 2015 is granted pending hearing and determination of the appeal.
- The respondent/applicant shall furnish security to the claimant/respondent in the form of a bank guarantee of Kshs. 23,495,500 within thirty (30) days from the date of this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 221 OF 2010
PROFESSOR MUTUMA MUGAMBI.........CLAIMANT
VERSUS
KENYA METHODIST UNIVERSITY……RESPONDENT
RULING
The notice of motion application dated 17th November 2015 seeks stay of execution of the award granted by Lady Justice Maureen Onyango on 26th August 2015 and delivered on 27th August 2015.
The application is supported by the affidavit of Kiriamiti sworn on 16th November 2015.
The application is opposed by a replying affidavit sworn by the claimant on 30th November 2015.
The issue for determination is whether the respondent is entitled to the stay of execution pending appeal. A notice of appeal was filed on 2nd September 2015. The respondent was ordered to pay the claimant Kshs.23,495,500. 00.
The applicant must demonstrate;
substantial loss may result to the applicant unless the order is made;
the application has been made without unnecessary delay; and
the applicant has furnished security for the due performance of the decree being appealed from.
It was held by the Court of Appeal in Butt vs. Rent Restriction Tribunal [1982]eKLR 417, that in an application for a stay of execution of a judgment, the court acts on the principle that its discretion will be exercised in a way which does not prevent an appeal from being made by the loser.
Further the Court of Appeal has held in African Safari Club Vs. Safe Rentals Ltd., Court of Appeal at Nairobi, Civil Application No. Nairobi 53 of 2010 that courts are enjoined to act as to enable parties to exercise their appellate rights; they are to act fairly and justly; to have regard to the substantive justice of the matters before them and weigh the relative hardships of the parties before them. The application of this principle results in the maintenance of the status quo of the parties at the time of judgment.
Upon considering the facts of this case, the court is of the view that the decretal amount is very large and it would be difficult for the claimant/respondent to refund the same, if he were to be paid and the appeal is subsequently successful. This is likely to result in substantial loss to the applicant.
The application has been brought without substantial delay the judgment having been delivered on 27th August 2015 and the application was filed on 17th November 2015, following filing of a notice of appeal.
Furthermore, the applicant has demonstrated that it has an arguable appeal that may be rendered nugatory if the stay is not granted. See (Kenya Kazi Services Union vs. Kenya National Private Security Workers Union Court of Appeal at Nairobi [2013] eKLR).
Accordingly, the court grants stay of execution of the judgment by Lady Justice Maureen Onyango dated 26th August 2015 and delivered on 27th August 2015 pending the hearing and determination of appeal on condition that respondent / applicant shall furnish security to the claimant / respondent in the form of a bank guarantee of the amount of Kenya Shillings 23,495,500. 00 within thirty (30) days from the date of delivery of this ruling failing which the order for stay will automatically lapse.
Dated and Delivered at Nairobi this 5th day of February 2016.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE