[2018] KEELRC 2290 (KLR)
The court held that the respondent's application for stay of execution must be determined under Order 42 Rule 6(2) of the Civil Procedure Rules, not the Court of Appeal Rules. The respondent demonstrated that the decretal sum is substantial and may be difficult to recover if paid out and the appeal succeeds....
Source-derived case information.
- Citation
- [2018] KEELRC 2290 (KLR)
- Parties
- Applicant: Ngumbaumulingwa; Applicant: Peter Kitheka Ngulungu; Applicant: Samuel Musyoki Mwenze; Applicant: Musyoki Kinoo; Applicant: Pius Mumo Wambua; Applicant: Peter Kioko Mbalau; Applicant: George Mutinda Muthembwa; Applicant: James Mule Maweu; Applicant: Nzuki Nzau; Applicant: Alex Waema Malombe; Applicant: Richard Musembi Nzuve; Applicant: Mutuku Kyalo; Applicant: Ratemo Matage Daniel; Respondent: Athi River Steel Plant Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1044 of 2012
- Procedural Posture
- Stay Application / Post Judgment, Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- DI Wasike
- Legal Topics
- Stay of Execution, Unfair Termination, 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
Ngumbaumulingwa
Applicant
Peter Kitheka Ngulungu
Applicant
Samuel Musyoki Mwenze
Applicant
Musyoki Kinoo
Applicant
Pius Mumo Wambua
Applicant
Peter Kioko Mbalau
Applicant
George Mutinda Muthembwa
Applicant
James Mule Maweu
Applicant
Nzuki Nzau
Applicant
Alex Waema Malombe
Applicant
Richard Musembi Nzuve
Applicant
Mutuku Kyalo
Applicant
Ratemo Matage Daniel
Applicant
Athi River Steel Plant Limited
Respondent
Procedural Posture
Stay Application / Post Judgment, Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the respondent has satisfied the legal requirements for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 3 Whether security for due performance of the decree should be furnished by the respondent.
Ratio Decidendi
The court held that the respondent's application for stay of execution must be determined under Order 42 Rule 6(2) of the Civil Procedure Rules, not the Court of Appeal Rules. The respondent demonstrated that the decretal sum is substantial and may be difficult to recover if paid out and the appeal succeeds. However, the law requires that security for due performance be provided. The court therefore granted a conditional stay of execution, ordering the respondent to deposit the decretal sum of Kshs. 1,227,450 in court within 45 days, failing which execution would proceed.
Court Disposition
Conditional stay of execution granted.
Orders
- The respondent shall deposit Kshs. 1,227,450 in court within 45 days of this ruling as security for due performance of the decree.
- In default of such deposit, execution to proceed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 1044 OF 2012
NGUMBAUMULINGWA.............................1ST CLAIMANT
PETER KITHEKA NGULUNGU................2ND CLAIMANT
SAMUEL MUSYOKI MWENZE.................3RD CLAIMANT
MUSYOKI KINOO........................................4TH CLAIMANT
PIUS MUMO WAMBUA...............................5TH CLAIMANT
PETER KIOKO MBALAU...........................6TH CLAIMANT
GEORGE MUTINDA MUTHEMBWA.......7TH CLAIMANT
JAMES MULE MAWEU...............................8TH CLAIMANT
NZUKI NZAU.................................................9TH CLAIMANT
ALEX WAEMA MALOMBE......................10TH CLAIMANT
RICHARD MUSEMBI NZUVE..................11TH CLAIMANT
MUTUKU KYALO...................................... 12TH CLAIMANT
RATEMO MATAGE DANIEL....................13TH CLAIMANT
VERSUS
ATHI RIVER STEEL PLANT LIMITED.......RESPONDENT
RULING
1. By motion dated 5th December 2016 the respondent sought stay of execution of the court’s judgment delivered on 2nd septmeber 2012 in favour of the claimant pending appeal.
2. The application is purportedly brought under Rule 4, 5(2) (b), 42 and 74of theCourt of Appeal Rules. This is not an appellate court. The Court of Appeal Rules therefore do not apply in this court. The applicable rules are Order 42 of the Civil Procedure Rules read together with Rule 32 (2) of the Court Rules.
3. Under Order 42, Rule 6 (2), no order of stay of execution shall be made under sub-rule 1 unless the order is made and that the application is made without unreasonable delay and such security as the court orders for the due performance of such decree or order as may ultimately be binding on his has been given by the applicant. As can be observed herein the considerations for grant of stay before the trial court do not include arguability or otherwise of the appeal.
4. The court awarded each of the twelve claimants on month’s salary in lieu of notice and six months’ salary as compensation for unfair termination of service. The total decretal sum once computed is substantial and once paid out to the claimants may be difficult to recover if the respondent is successful on appeal.
5. The rules however require that the respondent furnishes such security for the due performance of the decree. The court will therefore order that the respondent do deposit in court the sum of Kshs.1,227,450/= being the decretal sum herein within 45 days of this ruling, in default execution to proceed.
6. It is so ordered.
Dated at Nairobi this 2nd day of March 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 2nd day of March 2018
In the presence of:-
…………………………………………...…… for the claimant
……………………………………………. for the Respondent
Abuodha J. N.
Judge