[2022] KEELRC 14732 (KLR)
The court found that the applicant had presented an arguable case and that denying a stay of execution would render the appeal academic if execution proceeded before the appeal was heard. The court emphasized the importance of allowing parties to have their day in court and that ex parte hearings should only be...
Source-derived case information.
- Citation
- [2022] KEELRC 14732 (KLR)
- Parties
- Applicant: Potters House Academy; Respondent: Leah Chemeli Kemer
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause E021 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Potters House Academy
Applicant
Leah Chemeli Kemer
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the ex-parte judgment should be granted pending appeal.
- 2 Whether the applicant has provided a reasonable explanation for failing to attend the original hearing.
- 3 Whether the applicant has an arguable defence to the claim.
Ratio Decidendi
The court found that the applicant had presented an arguable case and that denying a stay of execution would render the appeal academic if execution proceeded before the appeal was heard. The court emphasized the importance of allowing parties to have their day in court and that ex parte hearings should only be conducted in exceptional circumstances. The court therefore granted a stay of execution of the ex-parte judgment pending the hearing and determination of the appeal, to preserve the subject matter and ensure that the applicant's right to be heard is not rendered nugatory.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the judgment delivered on 6th October, 2020 is granted pending hearing and determination of the present appeal.
- Parties are urged to fast track the hearing and disposal of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
CAUSE NO. E021 OF 2021
POTTERS HOUSE ACACEMY..................................CLAIMANT
VERSUS
LEAH CHEMELI KEMER...................................RESPONDENT
RULING
1. The applicant in the motion dated 22nd November, 2021 seeks orders among others that pending the hearing and determination of the appeal there be a stay of execution of the ex-parte judgment dated 6th October, 2020 in ELRC No.182 of 2019.
2. The trial Court dismissed an application seeking to set aside the ex-parte hearing and judgment. This is the subject matter of the present appeal.
3. The applicant has alleged that it has a good defence to the claim including an averment that the claimant resigned from employment hence was never unlawfully terminated.
4. The Court should always lean towards letting parties ventilate their disputes. When a Court finally renders its determination over any dispute submitted to it to resolve, either party ought to feel they had their day in Court even if the decision might not favour them. An ex parte hearing therefore deprives a party of this right and should only be conducted in exceptional cases where it is plain and clear that the defendant was properly served but failed and or ignored to attend Court. In an application to set aside an ex parte hearing the Court ought to listen to what explanation or excuse the applicant has that prevented them from attending Court. If found reasonable, the application ought to be allowed.
5. The function of this Courts as the 1st appellate Court is that it will look a fresh at the evidence and arrive at its own conclusion.
6. The applicant intends that the Court considers the application seeking to set aside the ex parte hearing and judgment.
7. If the Court were to come to conclusion that the application to set aside the ex parte hearing should be allowed, it would be purely academic if execution had been allowed to proceed.
8. In the circumstances the Court will allow the application and grant the appellant stay of execution of judgment delivered on 6th October, 2020 pending hearing and determination of the present Appeal.
9. Parties are however urged to fast track the hearing and disposal of the Appeal.
10. It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF MARCH, 2022
Abuodha Nelson Jorum
Judge ELRC