[2015] KEELC 642 (KLR)
The court found that the respondent had satisfied the requirements for grant of stay of execution pending appeal: the application was made promptly, the respondent expressed readiness to provide security, and there was no unreasonable delay. However, the court held that the respondent's claim regarding the...
Source-derived case information.
- Citation
- [2015] KEELC 642 (KLR)
- Parties
- Applicant: Nduta Keziah Kiema, Prisca Lubya, Mary Mbone Shisungu, Aclean Chepkemoi Rono, Ema Valentine Waiyaki, Rhoda Chepngetich Koech, Dorothy Florence Shisungu, Amitaban Ashokumar Patel, Shalin Wason, Mary Ogada, Joyce Kemunto Oira; Respondent: Lions Niru Shah (Chairman, Lions School Management Board)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 202 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of deposit of decretal sums in joint interest earning account.
- Legal Topics
- Stay of Execution, Unfair Dismissal, Compensation Awards, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nduta Keziah Kiema, Prisca Lubya, Mary Mbone Shisungu, Aclean Chepkemoi Rono, Ema Valentine Waiyaki, Rhoda Chepngetich Koech, Dorothy Florence Shisungu, Amitaban Ashokumar Patel, Shalin Wason, Mary Ogada, Joyce Kemunto Oira
Applicant
Lions Niru Shah (Chairman, Lions School Management Board)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent has satisfied the legal requirements for grant of stay of execution pending appeal.
- 2 Whether the respondent has demonstrated substantial loss will occur if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the respondent had satisfied the requirements for grant of stay of execution pending appeal: the application was made promptly, the respondent expressed readiness to provide security, and there was no unreasonable delay. However, the court held that the respondent's claim regarding the claimants' inability to refund the decretal sums was not, by itself, sufficient to justify stay. Considering all circumstances, the court granted the stay on the condition that the respondent deposits the full decretal sums in a joint interest earning account in the names of the advocates for both parties within ten days. If the parties could not agree on a commercial bank, the account...
Court Disposition
Stay of execution granted on condition of deposit of decretal sums in joint interest earning account.
Orders
- Prayer c) of the motion for stay of execution pending appeal is granted on condition that the respondent deposits the full decretal sums in a joint interest earning account in the names of the advocates for both parties with a commercial bank within 10 days.
- If parties do not agree on the commercial bank, the account will be opened with any branch of Kenya Commercial Bank Ltd, Nakuru.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 202 OF 2013 (Originally Nairobi Cause No. 4 of 2012)
NDUTA KEZIAH KIEMA 1stCLAIMANT
PRISCA LUBYA 2ndCLAIMANT
MARY MBONE SHISUNGU 3rdCLAIMANT
ACLEAN CHEPKEMOI RONO 4thCLAIMANT
EMA VALENTINE WAIYAKI 5th CLAIMANT
RHODA CHEPNGETICH KOECH 6th CLAIMANT
DOROTHY FLORENCE SHISUNGU 7thCLAIMANT
AMITABAN ASHOKUMAR PATEL 8thCLAIMANT
SHALIN WASON 9thCLAIMANT
MARY OGADA 10thCLAIMANT
JOYCE KEMUNTO OIRA 11thCLAIMANT
V
LIONS NIRU SHAH
(CHAIRMAN, LIONS SCHOOL MANAGEMENT
BOARD) RESPONDENT
RULING
1. On 21 November 2014, this Court pronounced judgment in favour of the Claimants in which it found their dismissals procedurally unfair and awarded each of them pay in lieu of notice and the equivalent of 4 months wages as compensation except for Mary Mbone who was awarded the maximum 12 months wages as compensation.
2. The Respondent was aggrieved with the awards and on 25 November 2014, he filed a Notice of Appeal. On the same day, he filed the present motion seeking
a)…
b)…
c) This Honourable Court be pleased to issue for (sic) an order of stay of execution pending the hearing and determination of the preferred Appeal
d)…
3. Prayers a) and b) have been overtaken by events.
4. The motion was taken on 12 February 2015.
5. The grounds provided by the Respondent on the face of the motion are that a Notice of Appeal has been filed and proceedings applied for; the Respondent is financially stable and that theClaimants being unemployed would not be in a position to refund the decretal sum were the appeal to succeed.
6. The Respondent also relied on an affidavit by Ramesh Thakar sworn on 18 December 2014. The affidavit reiterated the grounds on the face of the motion and added that the Respondent was ready to give security.
7. The Claimants opposed the motion and they relied on a Replying Affidavit sworn on 30 January 2015 by the advocate on record, Steve Biko.
8. Mr. Biko deposed that the motion was incompetent; the Respondent had not demonstrated the appeal had any chances of success; that the financial position of the Claimants was reason for Respondent to pay them; the application was a delaying ploy and made in bad faith.
9. The legal principles for grant of stay pending appeal before this Court and the High Court are now trite. The principles are derivatives from the provisions of Order 42 rule 6. An applicant should demonstrate that it will suffer substantial loss, make the application without unreasonable delay and provide such security for the due performance of the decree as the Court may direct.
10. These legal principles have been discussed and distilled in cases such Mukuma v Abuoga (1988) KLR 645, Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others (2013) eKLR, Tabro Transporters Ltd v Absalom Dova Lumba (2012) eKLR and Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others (2010) eKLR.
11. The question of an appeal having any chances of success, as urged by Mr. Biko is not one of the principles applicable in this Court or the High Court. I believe that is a principle applicable when a party seeks a stay before the Court of Appeal under the famous rule 5(2)(b) of that Court’s Rules.
12. The Respondent brought the application within about a month of the judgment. There was no delay in the circumstances.
13. The Respondent has stated that it is ready to give security.
14. The Respondent further contends that the Claimants may not be in a position to refund the decretal sums were the appeal to succeed. The Respondent appears to suggest the Claimants are persons of straw.
15. This on its own cannot be a sufficient reason to grant stay of execution pending appeal. The Court must look at all the circumstances of a case.
16. Appeals no longer linger in the Courts endlessly. The proceedings in this Cause have been typed though not yet certified.
17. The Respondent has offered to give security.
18. I would grant prayer c) of the motion on the condition that the Respondent deposits the full decretal sums in a joint interest earning account in the names of the Advocates on record for both sides with a commercial bank within the next 10 days.
19. Should the parties not agree on the commercial bank, such account will be opened with any branch of the Kenya Commercial Bank Ltd, Nakuru.
20. Costs of the motion in the cause.
Delivered, dated and signed in Nakuru on this 20thday ofFebruary 2015.
Radido Stephen
Judge
Appearances
For Claimants Mr. Biko instructed by Odhiambo & Odhiambo Advocates
For Respondent Mr. Kimatta instructed by Kimatta & Co. Advocates