[2020] KEELRC 1326 (KLR)
The court found that the respondent failed to provide a satisfactory explanation for the delay in filing both the notice of appeal and the application for stay of execution. The respondent did not exhibit draft grounds of appeal or a draft memorandum of appeal, making it impossible for the court to assess whether...
Source-derived case information.
- Citation
- [2020] KEELRC 1326 (KLR)
- Parties
- Applicant: Mwachupa Haranga Ndurya; Respondent: Krystalline Salt Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Cause 8 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Stay of Execution, Appeal Procedure, Delay in Filing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwachupa Haranga Ndurya
Applicant
Krystalline Salt Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent has provided sufficient grounds for stay of execution of judgment pending appeal.
- 2 Whether the delay in filing the notice of appeal and application for stay is justified.
- 3 Whether the respondent has demonstrated the existence of an arguable appeal.
Ratio Decidendi
The court found that the respondent failed to provide a satisfactory explanation for the delay in filing both the notice of appeal and the application for stay of execution. The respondent did not exhibit draft grounds of appeal or a draft memorandum of appeal, making it impossible for the court to assess whether there was an arguable appeal. Furthermore, the respondent did not demonstrate that the claimant would be unable to refund the decretal sum if the appeal succeeded. The absence of a valid notice of appeal and supporting documents led the court to conclude that the application lacked merit and should be rejected.
Court Disposition
application dismissed
Orders
- The respondent's application dated 20th January 2020 is rejected.
- Costs awarded to the claimant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MALINDI
CAUSE NUMBER 8 OF 2019
[Previously Cause No. 127 of 2016, E&LRC Mombasa]
BETWEEN
MWACHUPA HARANGA NDURYA..........................CLAIMANT
VERSUS
KRYSTALLINE SALT LIMITED.........................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Oduor Siminyu & Company, Advocates for the Claimant
Arwa & Change Advocates LLP, Advocates for the Respondent
__________________________________________________
RULING
1. Initially, an ex-parte Judgment was delivered in favour of the Claimant, on 8th March 2018.
2. The Judgment was set aside on the Application of the Respondent, and leave granted to respond to the Claim.
3. Parties were heard afresh, and in full and second Judgment delivered in favour of the Claimant on 31st October 2019.
4. The Respondent filed an Application on 23rd January 2020 seeking the Court to order stay of execution of Judgment pending Appeal and to have Notice of Appeal filed on 15th November 2019, deemed to have been filed and served on time.
5. The Application is based on the Affidavit of Hasmita Patel, Respondent’s Director, sworn on 6th December 2019.
6. Hasmita explains that the slight delay in filing Notice of Appeal, was occasioned by the Change of Advocates instructed by the Respondent. Hasmita states that the Respondent is eager to appeal.
7. The Claimant opposes the Application through his Replying Affidavit, sworn on 10th February 2020. He narrates the history of the dispute highlighting that the initial Judgment was set aside, to allow the Respondent to participate in the proceedings.
8. Notice of Appeal was filed late. There was inordinate delay – 3 months in filing the Application, after judgment was delivered. The Respondent has not demonstrated why execution of the Judgment, should be stayed.
The Court Finds:-
9. There is unexplained delay in filing of the Application. The Application was filed on 23rd January 2020. Judgment was delivered on 31st October 2019.
10. It was the second Judgment made in favour of the Claimant.
11. Hasmita has not exhibited draft Grounds of Appeal, to enable the Court assess if there is an arguable Intended Appeal. It is not enough for Hasmita to say that the Respondent is eager to appeal. It must be shown recondite grounds justifying Appeal exist. The Respondent has not even applied for proceedings, an elementary step in any process of Appeal.
12. It similarly has not been established, that the Claimant is a man of straw, incapable of paying back the sum of Kshs. 291,109, in event the intended Appeal succeeds.
13. As there is no valid Notice of Appeal on record, and no Draft Memorandum of Appeal exhibited, the Application must be rejected.
IN SUM, IT IS ORDERED:-
a) The Respondent’s Application dated 20th January 2020, is rejected.
b) Costs to the Claimant.
Dated and delivered at Mombasa this 26th day of March 2020.
James Rika
Judge