Charles Maina Munyua v Victory Construction Limited [2014] KEELRC 647 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 753 OF 2012

CHARLES MAINA MUNYUA ........................................................CLAIMANT

-VERSUS-

VICTORY CONSTRUCTION LIMITED ....................................RESPONDENT

Mr. Onyango for Respondent/Applicant

Mr. Ngala for Claimant/Respondent

RULING

An Application on Certificate of Urgency dated 4th October 2013 was filed by the Respondent/Applicant seeking interalia, an order for stay of execution of the judgment delivered on the 19th September 2013 and the resultant decree of the Court, pending the hearing and determination of the Appeal.

A Notice of appeal dated 20th September 2013 and filed on 20th September 2013 was attached to the Application.

Interim orders were granted exparte by Hon. Justice Maureen Onyango on 8th October, 2013.  The Claimant/Respondent was directed to file a response within 14 days and both parties to file written submissions.

The interim orders were not extended on that date.

Meanwhile, the Claimant proceeded to execute the judgment and the decree of the Court necessitating an urgent application to be filed on 20th December, 2013 and Hon. Justice Rika, reinstated the interim orders for stay of execution pending the hearing and determination of this application.

The Applicant has not attached a draft memorandum of Appeal and it is difficult for the Court to evaluate whether or not the intended Appeal is arguable.

However, the decretal amount is in the sum of 753,560 and the appeal may be rendered nugatory in the event the Claimant is unable to repay the decretal sum if execution of the same is allowed at this stage.

It is apposite to note that the Claimant has not demonstrated ability to repay the same in the event the appeal is successful.

Having said that, it is right that the Claimant is able to enjoy the fruits of his judgment especially because he remains unemployed and therefore without income.

Accordingly, the judgment of the Court delivered on the 19th September, 2013 and the resultant decree of the Court is hereby stayed pending the hearing and determination of the intended Appeal.

The Applicant is however directed to deposit with the Court the entire decretal amount within 30 days from the date of this Ruling, failing which the order for stay of execution above shall be deemed expired.

Dated and Delivered at Nairobi this 21st day of February, 2014.

MATHEWS N. NDUMA

PRINCIPAL JUDGE