[2024] KEELRC 13476 (KLR)
The court found that the miscellaneous application for stay of execution was spent, as the subject matter had already passed and the appellant had already filed a substantive appeal (E223 of 2024) where such relief should be sought. The court held that filing multiple applications for the same relief amounts to...
Source-derived case information.
- Citation
- [2024] KEELRC 13476 (KLR)
- Parties
- Applicant: Suhufi Palace Hotel Limited; Respondent: Abdalla Wepo Makhoha
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E107 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Hearing Directions
- Outcome
- application dismissed with costs to the respondent
- Judges
- M Mbarũ
- Legal Topics
- Stay of Execution, Abuse of Court Process, Interim Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Suhufi Palace Hotel Limited
Applicant
Abdalla Wepo Makhoha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Hearing Directions
Legal Issues
- 1 Whether the court should grant a stay of execution pending attendance for hearing directions.
- 2 Whether the miscellaneous application constitutes an abuse of court process.
Ratio Decidendi
The court found that the miscellaneous application for stay of execution was spent, as the subject matter had already passed and the appellant had already filed a substantive appeal (E223 of 2024) where such relief should be sought. The court held that filing multiple applications for the same relief amounts to abuse of court process. Since the purpose of the miscellaneous application was no longer live, there was no basis for granting the orders sought. The court concluded that the proceedings were unnecessary and that costs should be awarded to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The miscellaneous application is dismissed.
- The appellant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
Suhufi Palace Hotel Limited v Makhoha (Miscellaneous Application E107 of 2024) [2024] KEELRC 13476 (KLR) (19 December 2024) (Ruling)
Neutral citation: [2024] KEELRC 13476 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Miscellaneous Application E107 of 2024
M Mbarũ, J
December 19, 2024
Between
Suhufi Palace Hotel Limited
Appellant
and
Abdalla Wepo Makhoha
Respondent
Ruling
1. The appellant filed an application dated 17 October 2024 seeking preservatory/conservatory orders for a stay of execution pending hearing directions. The application is supported by the affidavit of Japheth Asige Advocate for the appellant and on grounds that on 17 October 2024 the court directed the appellant to serve the respondent with the application and attend court for directions on 29 October 2024 but in the meantime, the warrant of attachment has been issued and unless the same is stayed, the appeal will be rendered nugatory.
2. Advocate Asige aver in his Affidavit that the appellants' goods used in the day-to-day running of the business have been proclaimed and unless there is a stay of execution, the same will be sold.
3. The appellant has filed Appeal E223 of 2024 Shufi Palace Hotel Limited v Abdalla Wepo Makhoha and if its goods are sold in attachment, the appeal will be rendered nugatory.
4. In reply, the respondent filed his Replying Affidavit and aver that based on the records, the matter was for judgment on 30 May 2024 when the appellant logged in late. There was notice but no action was taken to move the court until execution was levied. Through letter dated 22 August 2024 was never served upon the respondent or uploaded on the online portal and this was sorely created to support this suit.
5. The respondent aver that the appellant has not explained the delay between 22 August 2024 to date. The application is only meant to delay the fruits of the judgment and should be dismissed with costs.
6. Both parties filed written submissions which are analyzed and the single issue for determination is whether an order of stay of execution pending attendance in court for taking hearing directions should be issued.
7. The nature of the orders sought is brief and interim, that the court be pleased to grant prevervatory/conservatory orders of stay of execution pending the attendance before this court for taking hearing directions on 29th October 2024 as ordered by this court.
8. This instance has come and passed. The subject for the miscellaneous application is spent.
9. The appellant as the applicant has admitted that there is Appeal E223 of 2024 Shufi Palace Hotel Limited v Abdalla Wepo Makhoha. This is the core foundation that should be applied to seek the orders sought herein.
10. Filing various suits including a miscellaneous application seeking a stay of execution is pure abuse of the court process.
11. A miscellaneous application should serve a single purpose. Once spent, the suit ends at that point.
12. Moving forward, where the appellant herein has filed Appeal E223 of 2024 Shufi Palace Hotel Limited v Abdalla Wepo Makhoha, other processes should result from such matter.
13. This matter is spent. There was no need to bring these proceedings against the respondent as such should have been addressed under the Appeal E223 of 2024 Shufi Palace Hotel Limited v Abdalla Wepo Makhoha. On this basis, the appellant is to meet costs due to the respondent.
Orders accordingly.
DELIVERED IN OPEN COURT AT MOMBASA THIS 19TH DAY OF DECEMBER 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………….………………………