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JudgmentPetrocity Enterprises Limited VS Emmanuel Shimoka3 min read

Petrocity Enterprises Limited VS Emmanuel Shimoka

Employment and Labour Relations Court at Mombasa ELRC · · MBARU MONICA

Summary

The court allowed the appellant's application for a stay of execution of a 2021 judgment pending appeal to the Court of Appeal, requiring the decretal sum to be deposited in a joint interest-earning account held by both parties' counsels within 14 days. The court found that the appellant had filed a valid appeal with a notice of appeal and draft memorandum, and the delay in securing the judgment was not excessive given the circumstances. The court applied the discretion under Order 22 rule 22 and relevant cases to grant the stay on the condition that the decretal sum be deposited in a joint account to ensure the respondent could not be deprived of the judgment's fruits if the appeal failed.


The appellant filed an application dated 31st July 2024 under the provisions of Order 22 rule 22(1), Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules seeking orders;

  1. Spent
  2. Spent.
  3. There be a stay of execution of the judgment delivered by Hon. J. B. Kalo on 14 February 2024 and the decree emanating therefrom, pending the hearing and determination of the intended appeal to the Court of Appeal.
  4. The appellant/applicant be ordered to deposit the decretal sum in a joint interest-earning account in the name of the parties\' respective counsels pending the determination of the intended appeal.
  5. The costs for this applicant to abide by the outcome of the intended appeal.

The application is supported by the Affidavit of Aman Kurji the managing director of the appellant who avers that dissatisfied with the judgment of the trial court in Mombasa Mombasa CMELRC No.E485 of 2021 delivered on 14 February 2024 the appellant filed an appeal to the Employment and Labour Relations Court ELRCA E014 of 2024 and the court dismissed the appeal in the judgment delivered on 18 July 2024. The respondent has engaged auctioneers who proclaimed the appellant’s property and unless the judgment of the trial court is stayed, the appellant’s intended appeal to the Court of Appeal will be rendered nugatory.

The appellant is willing to deposit the decretal sum in a joint interest-earning account held by the counsels and abide by any other conditions that the court may issue.

In reply, the respondent filed Grounds of Opposition that their application cannot stand as there is no competent appeal filed. A notice of appeal is not sufficient to stop execution. The judgment herein was delivered on 18 July 2024 and the time to file an appeal has since lapsed. Execution is a valid process and without any appeal filed within time, the respondent should be allowed to enjoy the fruits of his judgment.

Both parties attended and made oral submissions.

The affidavits and grounds of opposition are analyzed and the single issue for determination is whether a stay of execution of the judgment in Mombasa CMELRC No.E485 of 2021 delivered on 14 February 2024 should be stayed pending the intended appeal to the Court of Appeal.

Judgment in Mombasa CMELRC No.E485 of 2021 was delivered on 14 February 2024. The appellant filed this appeal and judgment was delivered on 18 July 2024.

Pending the hearing of the instant appeal, nothing was done to secure the trial court judgment. From 14 February 2024 until 2 August 2024, there was inaction on the part of the appellant.

However, in the interests of justice, the court is guided under the conditions set out under Order 22 rule 22 and findings in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei County Returning Officer Bomet County, Kennedy Ochayo, Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Sheikh [2014] KESC 12(KLR). Where a party desires to file an appeal, the court should judicially apply its discretion. In the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike; Lantech Ltd [2006] KECA 333 (KLR) the court held that where the applicant has satisfied that it has an arguable appeal and that if the decretal sum is paid over, the respondent might well be unable to pay it back and that would render the success of the applicant\'s intended appeal nugatory. There is no Replying Affidavit by the respondent to controvert the averments by the appellant.

The instant application is filed without inordinate delay, there is a Notice of Appeal and the draft Memorandum of Appeal and to allow the appellant to enjoy the right of appeal, it is only fair and just to grant a stay of execution on the offered condition that the decretal sum be deposited in a joint interest earning account held by both parties.

Accordingly, the application dated 31 July 2024 is hereby allowed on condition that the appellants secure the judgment and deposit the decretal sum in a joint interest-earning account held by both counsels for the parties within the next 14 days closing on 7 November 2024 failure to which the Order of stay will automatically lapse. Costs to the respondent.

Delivered in open court at Mombasa on this 17 day of October 2024.

M. MBARŨ

JUDGE

    Petrocity Enterprises Limited VS Emmanuel Shimoka Petrocity Enterprises Limited VS Emmanuel Shimoka