[2022] KEELRC 13171 (KLR)
The court held that it was functus officio on the issue of stay of execution, having already rendered a decision on the matter in a previous ruling. The applicant's recourse on the stay issue lies with the Court of Appeal. Regarding the consent order for stay of execution, the court found that the applicant had...
Source-derived case information.
- Citation
- [2022] KEELRC 13171 (KLR)
- Parties
- Appellant: Roy Parcel Services Limited; Respondent: Paul Onyango Abiero
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Appeal E037 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay of Execution and Leave for Advocate to Come on Record
- Outcome
- Application partly allowed; leave for new advocates to come on record granted; prayer for stay of execution dismissed.
- Judges
- CN Baari
- Legal Topics
- Stay of Execution, Leave to Appear, Consent Orders, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roy Parcel Services Limited
Appellant
Paul Onyango Abiero
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay of Execution and Leave for Advocate to Come on Record
Legal Issues
- 1 Whether the Firm of Kenlee & Co. Advocates should be allowed to come on record for the applicant.
- 2 Whether the respondent should be restrained from proclaiming, attaching, and selling the appellant’s properties before the appeal is heard and determined.
- 3 Whether the terms of the consent orders have been breached so as to allow the respondent to execute.
Ratio Decidendi
The court held that it was functus officio on the issue of stay of execution, having already rendered a decision on the matter in a previous ruling. The applicant's recourse on the stay issue lies with the Court of Appeal. Regarding the consent order for stay of execution, the court found that the applicant had complied with its terms, and there was no evidence of breach to justify execution by the respondent. The application for the new firm of advocates to come on record was unopposed and therefore allowed. Consequently, the prayer for stay of execution was dismissed, and only the prayer for leave for the new advocates to come on record was granted.
Court Disposition
Application partly allowed; leave for new advocates to come on record granted; prayer for stay of execution dismissed.
Orders
- The Firm of Kenlee & Co. Advocates is granted leave to come on record for the applicant.
- The prayer for stay of execution is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
Roy Parcel Services Limited v Abiero (Appeal E037 of 2021) [2022] KEELRC 13171 (KLR) (10 November 2022) (Ruling)
Neutral citation: [2022] KEELRC 13171 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Appeal E037 of 2021
CN Baari, J
November 10, 2022
Between
Roy Parcel Services Limited
Appellant
and
Paul Onyango Abiero
Respondent
Ruling
1. Before Court is a notice of motion application dated May 25, 2022 and filed on 26th, May, 2022, brought pursuant to order 51 rule 1 and order 22 of the Civil Procedure Rules, and section 3A of the Civil Procedure Act. The appellant/applicant seeks orders as follows: -i.Spentii.That the Firm of Kenlee & Co. Advocates be granted leave to come on record for the Applicant.iii.That this Honourable court takes into consideration the consent dated April 8, 2022iv.That the court be pleased to issue a temporary order of injunction retraining the respondent either by themselves or agents, servants or any other person from proclaiming, attaching and selling properties belonging to the applicant pending hearing and determination of the appeal hereinv.That the appeal be heard on priority basis.
2. The application is supported by grounds on the face and the affidavits sworn by Kenneth Waithaka on May 25, 2022. The application is premised on a proclamation notice issued to Jimken Auctioneers to proclaim the applicant’s assets, which include Motor Vehicles Registration Numbers KBV xxxx, KBT xxxx and KCE xxxx, and which may be attached and sold at the expiry of the notice.
3. The applicant avers that the respondent obtained a judgment against her on May 10, 2021, without due regard and consideration of the counterclaim, and that she appealed against the judgment and that the appeal is pending determination.
4. The appellant/applicant further avers that there is a consent for stay of execution of the judgment and decree in Kisumu Chief Magistrate’s Court Cause No. 46 of 2020, pending hearing and determination of the appeal dated April 8, 2022, and which was signed by both Advocates in the matter.
5. The applicant avers that she has not defaulted the terms of the consent save for a delay in dispatch of security documents which was occasioned by a misplacement of a parcel in transit.
6. The respondent did not oppose the application.
7. The appellant/applicant filed submissions and which have been duly considered.
Determination 8. I have considered the application, the grounds and affidavits in their support, and the appellant/applicant’s written submissions. The issues for determination are:i.Whether the Firm of Kenlee & Co. Advocates should be allowed to come on recordii.Whether the respondent should be stayed from proclaiming, attaching and selling the appellant’s properties before the appeal herein is heard and determinediii.Whether the terms of the consent orders have been breached so as to allow the Respondent to execute.
9. On the issue of stay of execution, this court had earlier in a ruling rendered on February 10, 2022, made a determination of the issue and the court is thus functus officio in as far as the issue of stay is concerned.
10. The appellant can thus only seek recourse in the Court of Appeal on the issue.
11. Concerning the consent order, the order is dated April 8, 2022 and is said to have been filed before the lower court where the matter subject of the appeal was determined.
12. The documents filed together with the instant application indicate that the applicant has complied with the consent orders leaving nothing for the court to consider and/or make a determination on.
13. The application by the Firm of Kenlee & Co. Advocates to be allowed to come on record in this matter, is not opposed and the prayer is allowed.
14. The prayer for stay is dismissed for the reasons foregone.
15. It is so ordered.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 10TH DAY OF NOVEMBER, 2022. CHRISTINE N. BAARIJUDGE.Appearance:Mr. Waithaka Present for the Appellant/ApplicantN/A present for the RespondentMs. Christine Omollo-C/A