Racheal Nungare & 15 others v Bake "N" Bite Limited & another [2014] KEELRC 200 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT MOMBASA

CAUSE NO. 220 OF 2013

IN THE MATTER OF :    THE EMPLOYMENT ACT, 2007 & THE                                         LABOUR INSTITUTIONS ACT, 2007

RACHEAL NUNGARE & 15 OTHERS..........................................CLAIMANT

VERSUS

BAKE "N" BITE LIMITED.........................................................RESPONDENT

BAKERY, CONFECTIONERY,FOOD

MANUFACTURING &ALLIED WORKERS UNION............................................................................... INTERESTED PARTY

RULING

Introduction

1.       This is a Notice of Motion dated 23. 6.2014 brought by the Respondent in   the suit (hereinafter called the Applicant).  It seeks stay pending Appeal   lodged against the whole judgment of this court dated 30. 5.2014.  According to the Applicant, unless stay is ordered she will suffer   irreparable loss.  The motion is supported by affidavit sworn by Seif    Muhammed Seif sworn on 23. 6.2014.  The gist of the affidavit is that the  Applicant's Appeal is not frivolous and has got high chances of success which will   be rendered nugatory if stay is not granted.  The Applicant    committed   herself to abide to any condition for stay that the court may order.

2.       The Claimants have opposed the motion by the Replying Affidavit sworn   by the 1st Claimant on 24. 6.2014.  The gist of the Replying Affidavit is that the Applicant has met the fundamental requirements for granting stay  pending appeal by this court.  According to the Claimants, the Applicant   has no appeal with good chances of success and the motion is only a   delaying tactic meant to deny the Claimant the enjoyment of the fruit of   their suit.  It is also a delaying tactic to allow the Applicant close down her     business.

3.       The motion was disposed of by way of written submissions which the court     has carefully considered.

Analysis and Determination

4.       It is not in dispute that the Applicant being dissatisfied by the impugned           judgment of this court filed a Notice of Appeal in exercise of her right of appeal. The issue for determination herein is whether the Notice of Motion   has met the essential requirements for the grant of stay pending appeal. The criteria precedent before granting stay by the trial court were set out  by the Court of Appeal in Halai & Another vs. Thorton & Turpin (1963)   Ltd [1990] KLR 365 in the following terms:

“The High Court's discretion to order a stay of execution of its   order or decree is fettered by three conditions.  Firstly the applicant must establish    a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from  a refusal to grant stay and thirdly the applicant must furnish  security. The application must of course be made without   unreasonable delay.”

The foregoing criteria are also provided for under Order 42 Rule 6(2) of the Civil Procedure Rules.

5.       There is no doubt that the motion for the stay was brought without undue   delay after the delivery of the impugned judgment.  As to whether there is  an appeal with good chances of success is not for this court to decide.     What is important to decide is whether the Applicant is likely to suffer   substantial loss if stay is declined.  In other words the court must assess the possibility of the Applicant's appeal becoming nugatory if it succeeds   after execution of the impugned judgment.  The court can only do so if    there is evidence adduced to prove that the Claimant (Decree Holder) will   not be able to refund the judgment debt if the appeal succeeds.  In this    case no evidence was adduced to prove that the Claimants will not be able  to refund the judgment debtor if the Appeal succeeds.  The burden of proof   cannot be shifted to the Decree Holder to prove his or her ability to repay   the judgment debt.  It is always upon the Applicant to prove the Decree Holder's inability to repay the decretal sum in the event the appeal   succeeds after execution.

6.       In view of the foregoing finding the court does not need to deal with  the     other aforesaid criteria because the impugned judgment is a money  decree whereby the Decree Holder can always refund the money if the   appeal succeeds.  Consequently the stay order is declined because the   criteria of inability to repay the judgment debt has not been proved.

Disposition

7.       The Notice of Motion dated 23. 6.2014 is dismissed with costs.

Dated and delivered in Mombasa this 10th day of October, 2014.

O.N. Makau

Judge