Ngumbau Mulingwa, Peter Kitheka Ngulungu, Samuel Musyoki Mwenze, Musyoki Kinoo, Pius Mumo Wambua, Peter Kioko Mbalau, George Mutinda Muthembwa, James Mule Maweu, Nzuki Nzau, Alex Waema Malombe, Richard Musembi Nzuve, Mutuku Kyalo & Ratemo Matage Daniel v Athi River Steel Plant Limited [2018] KEELRC 2290 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 1044 OF 2012

NGUMBAUMULINGWA.............................1ST CLAIMANT

PETER KITHEKA NGULUNGU................2ND CLAIMANT

SAMUEL MUSYOKI MWENZE.................3RD CLAIMANT

MUSYOKI KINOO........................................4TH CLAIMANT

PIUS MUMO WAMBUA...............................5TH CLAIMANT

PETER KIOKO MBALAU...........................6TH CLAIMANT

GEORGE MUTINDA MUTHEMBWA.......7TH CLAIMANT

JAMES MULE MAWEU...............................8TH CLAIMANT

NZUKI NZAU.................................................9TH CLAIMANT

ALEX WAEMA MALOMBE......................10TH CLAIMANT

RICHARD MUSEMBI NZUVE..................11TH CLAIMANT

MUTUKU KYALO...................................... 12TH CLAIMANT

RATEMO MATAGE DANIEL....................13TH CLAIMANT

VERSUS

ATHI RIVER STEEL PLANT LIMITED.......RESPONDENT

RULING

1. By motion dated 5th December 2016 the respondent sought stay of execution of the court’s judgment delivered on 2nd septmeber 2012 in favour of the claimant pending appeal.

2. The application is purportedly brought under Rule 4, 5(2) (b), 42 and 74of theCourt of Appeal Rules.  This is not an appellate court.  The Court of Appeal Rules therefore do not apply in this court.  The applicable rules are Order 42 of the Civil Procedure Rules read together with Rule 32 (2) of the Court Rules.

3. Under Order 42, Rule 6 (2), no order of stay of execution shall be made under sub-rule 1 unless the order is made and that the application is made without unreasonable delay and such security as the court orders for the due performance of such decree or order as may ultimately be binding on his has been given by the applicant.  As can be observed herein the considerations for grant of stay before the trial court do not include arguability or otherwise of the appeal.

4. The court awarded each of the twelve claimants on month’s salary in lieu of notice and six months’ salary as compensation for unfair termination of service. The total decretal sum once computed is substantial and once paid out to the claimants may be difficult to recover if the respondent is successful on appeal.

5. The rules however require that the respondent furnishes such security for the due performance of the decree.  The court will therefore order that the respondent do deposit in court the sum of Kshs.1,227,450/= being the decretal sum herein within 45 days of this ruling, in default execution to proceed.

6. It is so ordered.

Dated at Nairobi this 2nd day of March 2018

Abuodha J. N.

Judge

Delivered at Nairobi this 2nd day of March 2018

In the presence of:-

…………………………………………...…… for the claimant

……………………………………………. for the Respondent

Abuodha J. N.

Judge