[2021] KECA 718 (KLR)
The Court found that the applicant satisfied both limbs of Rule 5(2)(b): the intended appeal is arguable and, if stay is not granted, the appeal could be rendered nugatory if the decretal sum is paid out and the appeal subsequently succeeds. However, the Court balanced the interests of both parties by granting a...
Source-derived case information.
- Citation
- [2021] KECA 718 (KLR)
- Parties
- Applicant: Nation Media Group Limited; Respondent: Mugumo Munene
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application E047 of 2021
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- GK Oenga
- Legal Topics
- Unfair Termination, Stay of Execution, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nation Media Group Limited
Applicant
Mugumo Munene
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the appeal is arguable and whether its success would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the applicant satisfied both limbs of Rule 5(2)(b): the intended appeal is arguable and, if stay is not granted, the appeal could be rendered nugatory if the decretal sum is paid out and the appeal subsequently succeeds. However, the Court balanced the interests of both parties by granting a conditional stay of execution, requiring the applicant to deposit the decretal sum into a joint interest-earning account in the names of the advocates for both parties within thirty days. Failure to comply would result in the lapse of the stay order. This approach preserves the subject matter of the appeal and protects the interests of both parties pending the outcome of the appeal.
Court Disposition
Conditional stay of execution granted.
Orders
- Temporary stay of execution of the decree in ELRC Cause No. 975 of 2016 granted on condition that the applicant deposits the decretal sum into a joint interest-earning account in the names of the advocates for both parties within thirty (30) days.
- If the applicant fails to deposit the decretal sum within thirty (30) days, the stay order lapses without further orders.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: OUKO, (P), ASIKE-MAKHANDIA & KIAGE, JJ.A.)
CIVIL APPLICATION NO. E047 OF 2021
BETWEEN
NATION MEDIA GROUP LIMITED......APPLICANT
AND
MUGUMO MUNENE.........................RESPONDENT
(Being an application for stay of execution of the entire decision contained in the Judgment of the Environment and Labour Relations Court at Nairobi (Lady Justice H. Wasilwa, J.) delivered on 11th November, 2020 in ELRC Cause No. 975 of 2016)
********
RULING OF THE COURT
The applicant wishes to appeal against the decision of the Employment and Labour Relations Court (H. Wasilwa, J.) made on 11th November, 2020 in which it was found to have unfairly terminated without notice the employment of the respondent and ordered to pay him 10 months’ salary amounting to Kshs. 3,844,110 as compensation for unfair termination, costs of the suit and interest at court rates with effect from the date of the judgement.
The applicant, in the meantime, has moved to this Court under Rule 5(2)(b) of the Court of Appeal Rules asking that the execution of the above orders be stayed, pending the lodgement and determination of the appeal.
To satisfy the two principles under that rule, the applicant has urged us to find that, on account of the fact that there was no proof that the respondent’s termination was unfair, among other grounds, the appeal is arguable; and secondly, that if the sum awarded is paid over to the respondent before the determination of the appeal, and if the appeal was to succeed, that success would be otiose.
Instead, the applicant has prayed that should we be inclined to grant the application it would be ready to deposit the sum in question in a joint interest earning account, in the names of the advocates for the parties.
The respondent for his part finds this application a waste of Court’s time, frivolous and a misplaced venture because the process leading to execution has not even commenced; and that the applicant will be appraised of every step in executing the decree.
Further, the respondent reminds the applicant that he is not a man of straw, being a Group Account Director with Oxygene Marking Communications.
Finally, he has pleaded that should we be minded to grant the application, we may consider granting it on condition that the decretal sum be deposited in an account held jointly by his and the applicant’s advocates.
Whereas we are satisfied that this application meets the two limbs of Rule 5(2)(b),but we are minded to grant a temporary order of stay of execution of the decree in the Employment and Labour Relations Court Cause No. 975 OF 2019, on condition that the applicant shall, within thirty (30) days of this ruling, deposit the decretal sum into a joint interest-earning account in the names of its advocates and the respondent’s advocate, failing which, these orders shall lapse without further orders.
It is in the applicant’s interest to ensure that the appeal is lodged and heard without delay.
Costs to abide the outcome of the appeal.
DATED AND DELIVERED AT NAIROBI THIS 19THDAY OF MARCH, 2021.
W. OUKO, (P)
………………….………….
JUDGE OF APPEAL
ASIKE-MAKHANDIA
……………………………….
JUDGE OF APPEAL
P.O. KIAGE
………………..…………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR