[2017] KEELRC 815 (KLR)
The court found that the applicant failed to discharge the burden of proof required for the grant of stay of execution pending appeal. The applicant did not make any averment or provide evidence that the intended appeal was arguable or had prospects of success. Furthermore, the applicant did not respond to the...
Source-derived case information.
- Citation
- [2017] KEELRC 815 (KLR)
- Parties
- Claimant: Peter Mwanzia Kasau; Respondent: Kobo Safaris Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1317 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Appeal Procedure, Security for Judgment, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwanzia Kasau
Claimant
Kobo Safaris Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for grant of stay of execution pending appeal.
- 2 Whether the applicant has shown that the intended appeal is arguable or has a probability of success.
- 3 Whether the applicant has shown that the appeal will be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to discharge the burden of proof required for the grant of stay of execution pending appeal. The applicant did not make any averment or provide evidence that the intended appeal was arguable or had prospects of success. Furthermore, the applicant did not respond to the respondent's assertion of financial means to refund the decretal sum, nor did the applicant demonstrate any steps taken to prosecute the appeal nine months after judgment. Consequently, the court held that the application lacked merit and dismissed it.
Court Disposition
application dismissed
Orders
- The application for stay of execution pending appeal is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1317 OF 2011
PETER MWANZIA KASAU…..…………CLAIMANT
VERSUS
KOBO SAFARIS LIMITED…..….…...RESPONDENT
Mr. Wawada for respondent/applicant
Nyamu for claimant/respondent
RULING
1. The application is for stay of execution pending appeal against judgment delivered on 19th January 2016.
2. The applicant states that the application was brought without undue delay after correction of an error on the face of the record of the judgment. The judgment sum is Kshs.1,098,570/=.
3. That the respondent is ready and willing to comply with the conditions which the court may impose including furnishing a bank guarantee or security or depositing the judgment sum in a bank account.
4. That the appeal shall be rendered nugatory if the stay is not granted as the claimant may be unable to refund the decretal sum.
Response
5. The application is opposed vide a replying affidavit filed on 5th December 2016. The respondent states that the respondent has not demonstrated whether the pending appeal has any chance of success to warrant the orders sought. The respondent further states that he is a man of means and should the appeal be successful he shall refund the judgment sum and so the appeal will not be rendered nugatory.
6. That nine months after filing notice of appeal, the applicant has not demonstrated by way of documents that it has taken any steps to prosecute the appeal.
7. That equity does not aid the indolent and the application be dismissed for the aforesaid reasons.
Determination
8. The onus of demonstrating that, the intended appeal is arguable or has probability of success, that the appeal will be rendered nugatory if the stay is not granted and that reasonable steps have been taken to prosecute the intended appeal is with the applicant.
9. The applicant did not make a single averment in the notice of motion and supporting affidavit that the appeal has any prospects of success. The applicant did not also respond to the positive averments by the respondent that he is a man of means and would refund the decretal sum if appeal was successful and also the applicant did not attach any documents to show efforts made to prosecute the appeal nine months after the judgment of court.
10. For these reasons, the application fails and is dismissed.
Dated and delivered at Nairobi this 28th Day of April 2017
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE