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ELRCDismissedNotice of Motion dated 16th August, 2011· [2013] KEELRC 459 (KLR)

PHINIAS ASENEKA NGERESA V SAROVA HOTELS LIMITED T/A SAROVA STANLEY [2013] KEELRC 459 (KLR)

Industrial Court of Kenya
13 March 2013
MNMathews N. Nduma
730 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Industrial Court at Nairobi, per Mathews N. Nduma, Principal Judge, delivered judgment on 13th March, 2013 on a Notice of Motion dated 16th August, 2011 in which the Respondent/Applicant sought stay of execution of a Ruling by Justice Charles Chemmuttut delivered on 26th July, 2011 pending an intended appeal. A Notice of Appeal had been filed on 15th August, 2011 and interim orders were granted on 18th August, 2011. The application was initially dismissed for non-appearance on 1st September, 2011, then reinstated, and eventually heard on 19th November, 2012. Mr. Masese for the applicant argued in submissions that the Award of 24th April, 2010 contained a patent mistake: gratuity and house allowance were calculated on the basis of 35 years of service when the claimant had served only 20 years, and the claimant, as a supervisor not covered by the Collective Bargaining Agreement, was not entitled to severance allowance. He also urged that the appeal would be rendered nugatory and that the applicant was ready to deposit the decretal sum in a joint interest-earning account. Mr. Achoki, appearing for the Claimant/Respondent in person, opposed the application citing inordinate delay and the applicant's default of appearance and earlier failed review application. The court held that the grounds argued by counsel were not disclosed in the Notice of Motion or Supporting Affidavit, the Award was not annexed, and there was unexplained inordinate delay in filing a memorandum of appeal. The court found no case for stay and dismissed the application with costs.

Key legal issues

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01

Whether the applicant demonstrated grounds for stay of execution pending appeal

Holding

No case was made out for stay; the application failed.

Reasoning

The Notice of Motion and Supporting Affidavit merely made a bare assertion that the intended appeal had good prospects of success without setting out reasons. The grounds argued by counsel (alleged miscalculation of gratuity and house allowance over 35 rather than 20 years, and that the claimant was a supervisor not covered by the CBA) were not disclosed in the filed papers. The Award itself was not annexed to the application.

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02

Whether inordinate delay in filing the memorandum of appeal affected the application

Holding

The delay of over one year without explanation weighed against the applicant.

Reasoning

The matter was heard more than one year after the Notice of Appeal was filed, yet there was no indication that the appeal itself had been filed setting out grounds on points of law. No reasons were preferred in the applicant's papers for the delay in filing the memorandum of appeal.

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Legal principles established

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  • Submissions by counsel must be based on the averments in the papers filed; grounds not pleaded in the Notice of Motion or Supporting Affidavit cannot sustain an application

Court orders

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  1. 1.The Notice of Motion dated 16th August, 2011 seeking stay of execution is dismissed
  2. 2.The Respondent/Applicant shall pay the costs of the application
Jurisdiction invoked
Industrial Court's discretion on stay of execution pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "PHINIAS ASENEKA NGERESA V SAROVA HOTELS LIMITED T/A SAROVA STANLEY [2013] KEELRC 459 (KLR)", Case Analysis (2013). Notice of Motion dated 16th August, 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/459/eng@2013-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.