[2013] KEELRC 978 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO. 518 OF 2011

PETER NJOROGE NDUNGU…………………….............................................…CLAIMANT

VERSUS

BOARD OF DIRECTORS OFDAVID SHELDRICK WILDLIFE TRUST .….RESPONDENT

RULING

This court delivered its decision in this case on 10th May 2013. The Respondent, being aggrieved with the decision, field a Notice of appeal on 23rd May 2013. The Respondent also applied for certified copies of proceedings and judgment by letter to the Deputy Registrar dated 21st may 2012 but delivered to the court on 23rd May 2013.

By a Notice of Motion dated 26th June 2012 filed under Certificate of Urgency and supported by the affidavit of Charles Kinyanjui Kariuki sworn on 26th June 2013, the Respondent prays for the following orders;

That this application be certified as urgent and that service of the same be dispensed with at the first instance.

That there be a stay of execution of the judgment/award and all consequential orders delivered by this Honourable court on the 10th may 2013 pending the hearing and determination of this application inter-partes.

That there be a stay of execution of the judgment/award and all consequential orders delivered by this Honourable Court on the 10th May 2013 pending the hearing and determination of the appeal filed in the Court of Appeal.

That the Honourble could do order that the auctioneer’s charges in respect of the afore-mentioned execution be borne by the Claimant/Respondent.

That the costs of this application be provided for.

Temporary orders of stay were granted ex-parte on 27th June 2013. The application was heard interparties on 18th July 2013 when ruling was reserved for today. Ms. Achieng Nyaidoho instructed by the firm Archers & Wilcock advocates appeared for the Respondent applicant while Mr. Shijenje instructed by the firm of Kilonzo & Co. Advocates appeared for the Claimant.

The Applicant avers in the application and supporting affidavit of Charles Kinyanjui Kariuki that the Claimant has commenced execution unprocedurally and if allowed to proceed the Respondent stands to suffer irreparable harm and substantial loss, paralysis of its business operations grave prejudice and injustice.

In the Replying Affidavit the Claimant Peter Njoroge Ndung’u depones that he was at liberty and was justified to recover the Judgment debt upon expiry of the 30 days stay ordered by the court in the absence of an extension, that the Respondent has not demonstrated that its appeal has a good chance of success, or that the Claimant is a man of straw and lacks capacity to refund the decretal sum showed the appeal be successful. That on the contrary, the Respondent has deliberately refused to satisfy the decretal sum and it is the claimant who stands to suffer greater prejudice if he is denied accessing the fruits of the Judgment.

Ms. Nyaidho for the Respondent submitted that the conditions for the grant of the orders sought have been fairly settled in 3 principles. Firstly, that the application ought to have been filed without inordinate or unreasonable delay, secondly that there would be substantial loss to be suffered by the applicant and thirdly, the provision of security reasonable enough to satisfy the decree. That there was no delay as the Applicant sought and was granted leave of 30 days on 10th May 2013. The formal application was filed 15 days after the lapse of the informal stay and those 15 days is not inordinate delay.

On the second limb Ms. Nyaidoho referred to paragraphs 10,11,12,13 and 14 of the Supporting Affidavit in which the loss that would be occasioned to the applicant is deponed, that the proclamation notice list the Respondents motor vehicles which are its tools of trade in desnaring services which are procured by Kenya Wildlife Services that the Motor vehicles are attached the Respondents business would be paralysed, that this constitutes substantial loss. It was further submitted for the Applicant that such loss would not be recoverable by way of damages if the appeal succeeds. On the second limb deponed in paragraph 13 and use of the Supporting Affidavit is that the Respondent is not aware of the Claimants ability to repay the decretal sum should the appeal succeed.

The Respondent referred the court to the case of NATIONAL INDUSTRIAL CREDIT BANK LTD V AQUINAS FRANCIS WASIKE & ANOTHER(2006) eKLR and SWAPAN SADHAN BOSE V KETAN SURENDRA SOMAIA 23 OTHERS.

The issue of stay of execution pending appeal has been considered by the court in many cases and the conditions for grant of stay are fairly well settled.

I find that the applicant has satisfied the court that it intends to appeal having filed a Notice of Appeal on 23rd may 2013. I also find that based on the Claimants own admission that he is currently unemployed and in the absence of proof of ability to repay the decretal sum showed the appeal succeed, it is in the interest of Justice to grant the prayers sought.

The application is therefore allowed. The Respondent is granted a stay of execution of the Judgment of 10th May 2013 and all consequential orders pending the hearing and determination of the intended appeal.

The Respondent shall deposit the dectretal sum of Kshs.554,568. 80 in a joint interest earning account in the names of the Claimants and Respondents advocates that is Archer & Wilcock Advocates and Kilonzo & Company advocates within 14 days from the date of ruling.

Having failed to apply for stay of execution before the lapse of the stay of 30 days granted by the court on 10th May 2013, and thereby creating the necessity for the Claimant to apply for execution in this case, the Respondent shall pay both the Claimants advocates costs for this application and the auctioneers fees as agreed by the parties failing which the same shall be taxed by the Registrar.

Orders accordingly.

Read in open Court this 3rdday ofOctober2013

HON. LADY JUSTICE MAUREEN ONYANGO

JUDGE

In the presence of:

Akhaabi h/b for shijenye for Applicant

Ms. Nyaidhofor Respondent