TOBIAS ONG'ANY AUMA & 5 OTHERS v KENYA AIRWAYS CORPORATION LIMITED [2001] KEHC 21 (KLR)

REPUBLIC OF KENYA

E HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 4434 of 1992

1      TOBIAS ONG'ANY AUMA

2      AARON MUISYO MWAILU

3      JOHN OTIENO OWILI

4      WALTER OJWANG' AWICH

5      FIDELIS NTHUNTHI

6      HENRY MUNENE KARUBIU...................................................APPLICANTS

(Suing on their behalf and on behalf of the ex-employees ofKenya Airways)

VERSUS

KENYA AIRWAYS CORPORATION LIMITED.............................. DEFENDANT

RULING

This is an application by way of Notice of Motion under Order41 Rule 4 of the Civil Procedure Rules for orders that the judgmententered against the defendant herein on 23rd February, 2001 be stayeduntil the determination of the appeal there from. There is also aprayer for as stay of any further proceedings. The application isopposed.

Both learned counsel have ably presented their respectivearguments and cited several authorities.  I have read the said principles in respect of applications of this nature.

The application was filed on 9th march, 2001. It was thereforefiled without unreasonable delay. The plaintiffs, it is true, have avalid judgment in their hands. This court however is not the finalarbiter. I recognize the fact that I may have been wrong in the wholeadjudication process. In such a case the aggrieved party should begiven a chance to address the issues in the final court of justice.

An order for a stay of Execution does not deprive a decree holderof the fruits of the said decree. It merely delays such an execution inthe event the appeal does not succeed, and, in a decree such as theone in issue, the delay can always be compensated by an award ofinterest.

The defendant has a right of appeal as a matter of right. Thatright should be exercised. I have considered the issue of security. Anorder of such nature should not be made where the liquidity of anyparty may be adversely affected.  The commercial sector has in my view developed sufficient instruments which ensure that the interests of both parties are taken into consideration   of the prayers set out in the notice of motion filed on 9th March 2001. The defendant shall, however post security by way of either a Bank Guarantee OR insurance Bond in the sum of Kshs. 500 million. The said security shall be executed within 15 days of today. Costs of this application shall be on appealOrders accordingly. Dated and delivered at Nairobi this 4th day of June 2001

A. MBOGHOLI  MSAGHA

JUDGE