[2015] KEELRC 285 (KLR)
The court held that the primary considerations for granting a stay of execution pending appeal are whether the applicant would suffer substantial loss if the stay is not granted and whether the applicant has offered suitable security for the due performance of the decree. The court was not persuaded by arguments...
Source-derived case information.
- Citation
- [2015] KEELRC 285 (KLR)
- Parties
- Applicant: William M. Burugu; Respondent: Soloh Worldwide Inter-Enterprises Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 675 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal upon deposit of decretal sum as security.
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William M. Burugu
Applicant
Soloh Worldwide Inter-Enterprises Ltd
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the applicant has demonstrated that substantial loss may result if stay is not granted.
- 3 Whether suitable security has been offered for the due performance of the decree.
Ratio Decidendi
The court held that the primary considerations for granting a stay of execution pending appeal are whether the applicant would suffer substantial loss if the stay is not granted and whether the applicant has offered suitable security for the due performance of the decree. The court was not persuaded by arguments regarding the merits or arguability of the intended appeal at this stage. The applicant's offer to deposit the decretal sum in court as security was deemed sufficient. Consequently, the court ordered that the sum of Kshs.273,300 be deposited in a joint interest-earning account in the names of the advocates for both parties within fourteen days, pending the hearing and...
Court Disposition
Conditional stay of execution granted pending appeal upon deposit of decretal sum as security.
Orders
- The sum of Kshs.273,300 to be deposited in a joint interest-earning account in the names of the advocates for the parties within fourteen days of the ruling.
- In default of compliance, execution to proceed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 675 OF 2012
WILLIAM M. BURUGU................................................CLAIMANT
VERSUS
SOLOH WORDWIDE INTER-ENTERPRISES LTD.....RESPONDENT
RULING
1. The applicant seeks stay of execution of my judgment delivered on 20th February, 2015 pending the hearing and determination of an appeal yet to be filed by the applicant.
2. The application is brought on the grounds among others that the applicant has filed a notice of appeal and has an arguable appeal with high probability of success.
3. The applicant further contends that the respondent is a man of straw with no known fixed abode and primary source of income that would reasonably satisfy the reimbursement of the decretal sum in the event the appeal is successful.
4. I have considered submissions by Counsel on considerations the Court needs to take into account while deciding whether to grant or refuse a stay. I have also reviewed the very useful case relied on by Counsel in support of their respective positions.
5. Under Order 42 of the Civil Procedure Rules, no order of stay shall be made under sub rule 1 unless the Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application is made without unreasonable delay and further that such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
6. I have not had the benefit of seeing the Notice of Appeal or draft grounds of Appeal to see on what grounds my judgment is being impugned however my concern in dealing with an application for stay pending appeal is not arguability of the appeal or not and its probability of success. My concern at this stage is whether if I do not stay my order the applicant would suffer substantial loss and further whether the applicant has offered suitable security that may ultimately be binding upon him.
7. The merit or otherwise of the Appeal aside, the applicant has offered to deposit decretal sum in Court as security. The Court therefore in disposing of this application hereby directs that the sum of Kshs.273,300/= be deposited in joint interest earning account in the name of advocates for the parties within fourteen days of this ruling pending the hearing and disposal of the intended appeal.
8. In default execution to proceed.
9. It is so ordered.
Dated at Nairobi this 9th day of October 2015
Abuodha J. N.
Judge
Delivered this 9th day of October 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge