[2018] KEELRC 688 (KLR)
The court found that the applicant made the application for stay without unreasonable delay, offered adequate security for costs, and demonstrated that the appeal raised arguable grounds. The court exercised its discretion to grant a stay of proceedings on the condition that the applicant furnishes a suitable bank...
Source-derived case information.
- Citation
- [2018] KEELRC 688 (KLR)
- Parties
- Respondent: Peter Ngau Nzioka; Applicant: Muthaiga Golf Club
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 847 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings pending appeal allowed with conditions
- Judges
- AN Makau
- Legal Topics
- Stay of Proceedings, Security for Costs, Appeal Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ngau Nzioka
Respondent
Muthaiga Golf Club
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of proceedings pending appeal.
- 2 Whether sufficient cause and substantial loss have been demonstrated to warrant stay.
- 3 Whether the offer of security for costs is adequate.
Ratio Decidendi
The court found that the applicant made the application for stay without unreasonable delay, offered adequate security for costs, and demonstrated that the appeal raised arguable grounds. The court exercised its discretion to grant a stay of proceedings on the condition that the applicant furnishes a suitable bank guarantee of Kshs. 500,000 within 30 days. Failure to provide the guarantee would result in the automatic lapse of the stay. The court emphasized that the requirements for stay—sufficient cause, substantial loss, and security—had been met in this instance.
Court Disposition
application for stay of proceedings pending appeal allowed with conditions
Orders
- Stay of proceedings granted pending appeal, conditional upon the applicant furnishing a suitable bank guarantee of Kshs. 500,000 as security for costs within 30 days of the ruling.
- If the applicant fails to provide the bank guarantee within 30 days, the stay will automatically lapse.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CASE NO. 847 OF 2011
PETER NGAU NZIOKA........................................CLAIMANT /RESPONDENT
VERSUS
MUTHAIGA GOLF CLUB...................................RESPONDENT/APPLICANT
RULING
1. The Notice of Motion application before me seeks the stay of proceedings pending the hearing and determination of the appeal that has been preferred against the decision of the court given on 6th April 2018. The Respondent/Applicant has attached the memorandum of appeal in Civil Appeal No. 229 of 2018 at Nairobi between it and the Claimant/Respondent. The Respondent/Applicant has offered security for costs for the stay sought. The motion though served on 26th July 2018 was not opposed and Miss Mubangi while urging the motion submitted that relying on the grounds advanced on the face of the motion and the affidavit in support of the motion sworn by the finance manager of the Respondent/Applicant Mr. David Muunga, there was basis to grant the orders sought.
2. The parameters of grant of stay pending appeal are well set out in precedent. I need not rehash them here. The Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant stay and thirdly the applicant must furnish security. It need not be stated that the application must, of course, be made without unreasonable delay.
3. The Respondent/Applicant has made the application seeking stay in relatively short shrift. The decision appealed against was given in April 2018 and there is an appeal preferred as Civil Appeal No. 229 of 2018. There is offer of security and the appeal raises 7 grounds. These grounds from a reading of them reveal that there is an arguable appeal as can be gleaned from grounds 2, 3, 4, 5 and 6. An arguable appeal need not be an appeal that must succeed. Indeed, the appeal may well fail, as do some of the appeals preferred but that is for the Appellate Court to determine.
4. The order that commends itself for me to make is one allowing the motion seeking stay on the condition that the Respondent/Applicant will furnish within 30 days of the Ruling, a suitable bank guarantee of Kshs. 500,000/- as security for costs. Should the Respondent/Applicant fail to provide the said bank guarantee the stay granted today will automatically lapse.
It is so ordered.
Dated and delivered at Nairobi this 19th day of October 2018
Nzioki wa Makau
JUDGE