[2007] KEHC 2190 (KLR)
The court found that the applicant failed to demonstrate that the intended appeal had a probability of success. As the applicant did not satisfy the first condition for the grant of stay of execution, namely that the appeal is arguable, the court declined to exercise its discretion in favour of the applicant....
Source-derived case information.
- Citation
- [2007] KEHC 2190 (KLR)
- Parties
- Appellant: Peter Muchiri; Respondent: Celinico Flowers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 666 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Appealability, Termination of Employment, Casual Labour, Redundancy Benefits
- 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
Peter Muchiri
Appellant
Celinico Flowers Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the intended appeal is arguable and has a probability of success.
- 3 Whether refusal to grant stay would render the appeal nugatory.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the intended appeal had a probability of success. As the applicant did not satisfy the first condition for the grant of stay of execution, namely that the appeal is arguable, the court declined to exercise its discretion in favour of the applicant. Consequently, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 666 of 2006
PETER MUCHIRI………………….…………………….APPELLANT
VERSUS
CELINICO FLOWERS LTD…………..……………...RESPONDENT
RULING
This is the Plaintiff’s application for stay of execution under Order XLI Rule 4 and Order XXI Rule 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking a stay of execution of the decree and Warrant of Attachment and Sale issued by the Senior Resident Magistrates Court Limuru (A.O Amingo RM) on 14th March 2007.
The facts that led to this suit are that the Plaintiff was employed by the Defendant is a gardener. He had no letter of employment specifying his terms and conditions of employment. According to the Defendant he was classified as a casual labourer. His services were terminated and he was paid his full and final benefits which he received and confirmed in writing. He thereafter brought this suit against the defendant claiming payment for redundancy 3 years, house allowance for 4 years, salary arrears for 15 months, leave allowance for 5 years, leave travel allowance for 4 years. The trial magistrate dismissed the Plaintiff’s claim with costs. The Plaintiff’s appeal therefrom being Civil appeal No.666 of 2006 has been filed in this court and is pending.
Pending such hearing, a stay is sought. The principles upon which the court can grant a stay are well settled. Two conditions have to be satisfied by the Applicant: first it must be shown that the intended appeal is arguable and secondly, it must also be shown that if stay is withheld, the appeal will be rendered nugatory.
I have accordingly considered the facts of this case and applying the principles above stated, I have not been persuaded that the intended appeal has a probability of success. That being so I do not see how in the circumstances, it would be proper to exercise my discretion in favour of the applicant.
This application for stay therefore, fails and it is dismissed with costs.
Dated and delivered at Nairobi this 19th day of July 2007.
J.L.A. OSIEMO
JUDGE