[2015] KEELRC 1584 (KLR)
The court found that the application for stay pending appeal lacked merit because the notice of appeal was filed out of time and no application for enlargement of time had been made. The applicant's advocate was properly served but failed to appear, and the subsequent withdrawal of counsel did not justify the...
Source-derived case information.
- Citation
- [2015] KEELRC 1584 (KLR)
- Parties
- Claimant: Saum Achieng’ Otieno; Respondent: Rodentkil Cleaning Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 285(N) of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Appeal Procedure, Default Judgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saum Achieng’ Otieno
Claimant
Rodentkil Cleaning Company Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the application for stay pending appeal should be granted.
- 2 Whether the notice of appeal was filed within the prescribed time.
- 3 Whether the applicant's failure to appear was justified.
Ratio Decidendi
The court found that the application for stay pending appeal lacked merit because the notice of appeal was filed out of time and no application for enlargement of time had been made. The applicant's advocate was properly served but failed to appear, and the subsequent withdrawal of counsel did not justify the default. The court held that the application amounted to an abuse of process intended to deny the claimant the fruits of judgment, and therefore dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 285(N) OF 2009
SAUM ACHIENG’ OTIENO …………………...............…… CLAIMANT
VERSUS
RODENTKIL CLEANING COMPANY LIMITED…….….RESPONDENT
RULING
1. The Application for stay pending Appeal dated 10th April, 2014 against the Judgment of D.K. Njagi Marete entered on 20th December, 2013 in favour of the Claimant/Respondent is based on the grounds set out in the Chamber Summons and the Supporting Affidavit of Shamsa Gathoni Ibrahim sworn on 10th April, 2014.
2. The Applicant states that the Judgment was entered against the Application without notice to the Applicant.
3. That the Applicant only became aware of the Judgment when its goods were attached on 4th April, 2014 by the firm of Moraa Auctioneers.
4. That the intended execution will render the Appeal nugatory.
5. The Applicant states that the Appeal is arguable and has good prospects of success.
6. The Application is opposed by the Claimant/Respondent but no reason is advanced as to why the Respondent was in default of appearance.
7. The Advocate on record at the time was properly served and failed to appear at the hearing severally.
8. The Advocate has now conveniently withdrawn from the matter to allow another Counsel prosecute this Application.
9. The Notice of Appeal was filed on 10th April, 2014 and the Judgment was delivered on 20th November, 2013.
10. The Notice was lodged way out of time and there was no application filed with the Court of Appeal for enlargement of time at the time of hearing this Application on 26th February, 2015, more than one year from the date of the Judgment.
11. The court finds that, the Application has no merit at all. The same amounts to an abuse of the court process intended to deny the Claimant/Respondent the fruits of his Judgment.
12. The Application is therefore dismissed with costs.
Dated at Nairobi this 23rd day of April, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE
Delivered by Hon. Hellen Wasilwa on 24th day of April, 2015.
In the presence of