The appellant filed an application dated 26 July 2024 under the provisions of Order 42 rule 6 seeking a stay of execution of the judgment delivered on 28 June 2024 in Kwale CM ELRC No.9 of 2019 pending the hearing and determination of the intended appeal.
The application is supported by the affidavit of Harji Govind Ruda the director of the appellant who aver that the judgment in Kwale Case No.9 of 2019 was delivered on 28 June 2024 in favour of the respondent and dissatisfied, the appellant filed the Memorandum of Appeal which raises key issues of law and fact and has high chances of success. Unless an order of stay of execution is issued, the intended appeal will be rendered nugatory.
Mr. Ruda avers that there is imminent danger of exaction of the judgment and unless an order of stay is issued, the appellant will suffer irreparable loss and damage. The respondent has no means to secure the judgment and if paid the decretal sum, he will not be able to refund upon a successful appeal.
In reply, the respondent filed the Replying Affidavit of Elizabeth Wangui Munyari advocate attending for the respondent who avers that she has been in conduct of the matter and hence conversant with the facts.
Judgment in the trial court was delivered on 28 June 2024 but no Memorandum of Appeal has been filed since. None has been served upon the respondent. There is therefore no arguable appeal capable of discernment as to whether an order of stay of execution is justified. The Notice of Appeal filed and dated 11 July 2024 is not procedurally correct since what was supposed to be filed is a Memorandum of Appeal.
The appeal herein was filed out of time. Upon the judgment on 28 June 2024, the appellant had 30 days within which to file the appeal. This renders the appeal invalid and should be dismissed with costs.
Ms. Munyari avers that the appellant has not complied with the conditions necessary for the grant of an order of stay as required under Order 42 rule 6. The award of Ksh.594, 830 is payable to the respondent and there is no offer for deposit of security. There is no substantial loss to be suffered and the respondent is a social worker capable of repaying the amount if the appeal is allowed which is not the case here.
The appellant filed a Further Affidavit of Mr Ruda who aver that the Replying Affidavit sworn by Ms Munyari for the respondent is irregular and incompetent for offending rule 9 of the Advocates Act and fails the test set in the case of Simon Isaac Ngui v Overseas Courier Services Limited [1998] where the advocate is not allowed to depose contested facts. The affidavit in reply is calculated at misleading the court to strike out the Memorandum of Appeal without disclosing material facts. The Memorandum of Appeal was filed together with the instant application on 26 July 2024 and payment of additional court fees assessed and paid. Urging the court to strike out the appeal would be draconian and contrary to justice.
Both parties attended and made oral submissions in court.
The affidavits and submission are analyzed and the issues which emerge for determination are;
Whether there is a valid appeal on record;
Whether an advocate is allowed to file a Replying Affidavit for a client;
Whether an order of stay of execution pending the intended appeal should be allowed.
The foundation of any application seeking a stay of execution is the subject judgment together with a Memorandum of Claim or Memorandum of Appeal. A Notice of Appeal is not sufficient to support such an application.
Under Rule 11 of the Employment and Labour Relations Court (Procedure) Rules, 2024 a party seeking to file an appeal should do so within 30 days from the date of the impugned judgment issued.
Where no appeal is filed, as correctly pointed out by the respondent in the Replying Affidavit of Ms Munyari, an applicant must move the court under the provisions of Section 79G of the Civil Procedure Act and for this court, the motions of Rule 12 and 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024.
In the instant application by the appellant, the orders sought are that pending the hearing and final determination of the intended appeal by the appellant… this court be pleased to issue an order of stay for execution.
Together with the application, the appellant filed a Notice of Appeal, which is not necessary for this court.
Also, a Memorandum of Appeal is attached as an attachment to the application. No Memorandum of Appeal has been filed in these proceedings.
A scan of all records has been undertaken, and no appeal exists to support and give the application dated 26 July 2024 a proper foundation.
The further fees paid on 26 September 2024 at ksh.695 is not the fee due for a Memorandum of Appeal. The averments in the Further Affidavit of Mr. Ruda are misleading and not based on a proper appeal before this court.
The registration of the matter as an appeal and not a miscellaneous application does not change the status that there is no appeal on the record.
Without a proper appeal, these proceedings are invalid.
On the Replying Affidavit filed by Ms. Munyari for the respondent, under Rule 8 of the Advocates Practice Rules an advocate acting for a party should not swear an affidavit on disputed matters. I have perused the said affidavit and in my view, the entire affidavit contains facts relating to the Counsel\'s attendance in these proceedings and before the lower court. The averments relate to the judgment of the trial court, the provisions of the law with regard to the appeal and the timelines within which the appeal is filed. These facts are not contested by the appellant in the Further Affidavit as not being within the knowledge of counsel in the course of the legal duty to the client.
Accordingly, the application dated 26 July 2024 is an abuse of the court process, it is filed without disclosure that there is no valid Memorandum of Appeal and is hereby dismissed with costs to the respondent.
Delivered in open court at Mombasa on this 17 day of October 2024.
M. MBARŨ
JUDGE