Nduta Keziah Kiema, Prisca Lubya,Mary Mbone Shisungu, Aclean Chepkemoi Rono, Ema Valentine Waiyaki, Rhoda Chepngetich Koech, Dorothy Florence Shisungu, Amitaban Ashokumar Patel, Shalin Wason Mary Ogada & Joyce Kemunto Oira, v Lions Niru Shah (Chairman, Lions School Management Board) [2015] KEELC 642 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 202 OF 2013 (Originally Nairobi Cause No. 4 of 2012)

NDUTA KEZIAH KIEMA                                                  1stCLAIMANT

PRISCA LUBYA                                                               2ndCLAIMANT

MARY MBONE SHISUNGU                                             3rdCLAIMANT

ACLEAN CHEPKEMOI RONO                                          4thCLAIMANT

EMA VALENTINE WAIYAKI                                              5th CLAIMANT

RHODA CHEPNGETICH KOECH                                    6th CLAIMANT

DOROTHY FLORENCE SHISUNGU                                7thCLAIMANT

AMITABAN ASHOKUMAR PATEL                                   8thCLAIMANT

SHALIN WASON                                                             9thCLAIMANT

MARY OGADA                                                               10thCLAIMANT

JOYCE KEMUNTO OIRA                                               11thCLAIMANT

V

LIONS NIRU SHAH

(CHAIRMAN, LIONS SCHOOL MANAGEMENT

BOARD)                                                                            RESPONDENT

RULING

1.       On 21 November 2014, this Court pronounced judgment in favour of the Claimants in which it found their dismissals procedurally unfair and awarded each of them pay in lieu of notice and the equivalent of 4 months wages as compensation except for Mary Mbone who was awarded the maximum 12 months wages as compensation.

2.       The   Respondent   was   aggrieved   with  the   awards   and   on   25 November 2014, he filed a Notice of Appeal. On the same day, he filed the present motion seeking

a)…

b)…

c) This Honourable Court be pleased to issue for (sic) an order of stay of execution pending the hearing and determination of the preferred Appeal

d)…

3.       Prayers a) and b) have been overtaken by events.

4.       The motion was taken on 12 February 2015.

5.       The grounds provided by the Respondent on the face of the motion are that a Notice of Appeal has been filed and proceedings applied for; the Respondent is financially stable and that theClaimants being unemployed would not be in a position to refund the decretal sum were the appeal to succeed.

6.       The Respondent also relied on an affidavit by Ramesh Thakar sworn on 18 December 2014. The affidavit reiterated the grounds on the face of the motion and added that the Respondent was ready to give security.

7. The Claimants opposed the motion and they relied on a Replying Affidavit sworn on 30 January 2015 by the advocate on record, Steve Biko.

8.       Mr. Biko deposed that the motion was incompetent; the Respondent had not demonstrated the appeal had any chances of success; that the financial position of the Claimants was reason for Respondent to pay them; the application was a delaying ploy and made in bad faith.

9.       The legal principles for grant of stay pending appeal before this Court  and  the  High  Court  are  now  trite.  The  principles  are derivatives from the provisions of Order 42 rule 6. An applicant should demonstrate that it will suffer substantial loss, make the application without unreasonable delay and provide such security for the due performance of the decree as the Court may direct.

10.     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.

11.     The question of an appeal having any chances of success, as urged by Mr. Biko is not one of the principles applicable in this Court or the High Court. I believe that is a principle applicable when a party seeks a stay before the Court of Appeal under the famous rule 5(2)(b) of that Court’s Rules.

12.     The Respondent brought the application within about a month of the judgment. There was no delay in the circumstances.

13.     The Respondent has stated that it is ready to give security.

14.     The Respondent further contends that the Claimants may not be in a position to refund the decretal sums were the appeal to succeed. The Respondent appears to suggest the Claimants are persons of straw.

15.     This on its own cannot be a sufficient reason to grant stay of execution   pending   appeal.    The   Court   must   look   at   all   the circumstances of a case.

16.     Appeals no longer linger in the Courts endlessly. The proceedings in this Cause have been typed though not yet certified.

17.     The Respondent has offered to give security.

18.     I would grant prayer c) of the motion on the condition that the Respondent deposits the full decretal sums in a joint interest earning account in the names of the Advocates on record for both sides with a commercial bank within the next 10 days.

19. Should the parties not agree on the commercial bank, such account   will be opened with any branch of the Kenya Commercial Bank Ltd, Nakuru.

20.     Costs of the motion in the cause.

Delivered,  dated  and  signed  in  Nakuru  on  this  20thday  ofFebruary 2015.

Radido Stephen

Judge

Appearances

For Claimants                                                   Mr.  Biko  instructed  by Odhiambo & Odhiambo Advocates

For Respondent                                                Mr.  Kimatta  instructed by         Kimatta    &    Co. Advocates