[2019] KEELRC 1183 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 2156 OF 2014

VERONICA OTERI.............................................CLAIMANT

v

BARCLAYS BANK OF KENYA LTD........................RESPONDENT

RULING

1. For determination is an application dated 3 June 2019 by Barclays Bank Kenya Ltd (Respondent) seeking orders

1. …

2. THAT this Honourable Court be pleased to issue an order of stay of execution pending the hearing and determination of this application.

3. THATthis Honourable Court be pleased to issue an order of stay of execution pending the hearing and determination of the Appeal.

4. THAT costs of this application be in the cause.

2. On 3 June 2019, the Court allowed order 2 on condition that the Respondent deposited the decretal sum into Court pending inter partes hearing.

3. The Claimant filed a replying affidavit in opposition to the application on 11 June 2019. The Claimant also filed grounds of opposition on 14 June 2019.

4. The Court took arguments on 17 June 2019.

5. On 13 July 2018, Abuodha J delivered judgment in which he found that the termination of the Claimant’s employment was unfair, as a consequence of which he awarded him the equivalent of 12 months’ salary as compensation, and costs.

6. The Respondent was dissatisfied and it filed a Notice of Appeal on 17 July 2018, but nevertheless the Claimant moved to execute.

7. The grounds advanced by the Respondent in support of the application were that the decretal sum was colossal and any execution would deny it a right of appeal; that the Claimant would not be in a position to make restitution were the intended Appeal to succeed; that it stood to suffer irreparable loss and damage; that there had been no delay in bringing the application and that the intended Appeal was meritorious.

8. In opposing the application, the Claimant asserted that the Respondent had concealed material facts; that there was inordinate delay as the application had been filed over 10 months after judgment without any plausible explanation and the Respondent had not cooperated in having a decree extracted/sealed; that the Respondent’s conduct was cavalier as it had failed to participate in the taxation of costs; the prayers sought were vague; that the advocate who filed the application was not formally on record for the Respondent; the application was defective for lack of a draft Memorandum of Appeal, and that she had a steady source of income.

9. Law books are replete with cases outlining the legal principles a party seeking stay of execution pending appeal should satisfy.

10. Of course the statutory anchor to such applications is Order 42 rule 6 of the Civil Procedure Rules.

11. These legal principles have been discussed and distilled in cases such Mukuma v Abuoga (1988) KLR 645, Jotham Simiyu Wasike & another v Jackson Ongeri & 4 others (2013) eKLR, Tabro Transporters Ltd v Absalom Dova Lumba (2012) eKLR and Anthony Kiberenge Kamau v Kibuchi Wamunyi & 3 others (2010) eKLR.

10. Order 46 Rule 6 (2) of the Civil Procedure Rules, 2010 provides that an applicant who is seeking a stay of execution pending appeal must demonstrate the following:-

1. Substantial loss may result to the applicant unless the order was made

2. The application was made without unreasonable delay, and

3. Such security as the court orders for the due performance of such decree or order.

11. It is correct as asserted by the Claimant that it took the Respondent over 10 months to mount an application seeking stay of execution despite filing a Notice of Appeal within days of the judgment sought to be impugned.

12. The Respondent has not made any attempt to explain the lack of action within the interlude. An application seeking stay of execution in a trial Court is not dependent on the Court making available to the parties proceedings (certified or uncertified).

13. Such proceedings facilitate the preparation of a record of appeal for purposes of the appellate Court.

14. Without any sort of explanation for the delay of 10 months, it is the view of the Court that the delay was inordinate.

15. It is also not lost to the Court that the Respondent went to slumber after filing the Notice of Appeal as it failed to participate in formal processes such as approving the decree and taxation of bill of costs.

16. For the above reasons, the Court declines to exercise its discretion in favour of the Respondent.

17. The application dated 3 June 2019 is dismissed with costs.

Delivered, dated and signed in Nairobi on this 15th day of July 2019.

Radido Stephen

Judge

Appearances

For Claimant Mr. Amutallah instructed by Amutallah Robert & Co. Advocates

For Respondent Mr. Kilonzo, Federation of Kenya Employers

Court Assistant Lindsey