Francis N Gachuri v Energy Regulatory Commission [2014] KEELRC 1063 (KLR)

The court held that Rule 41 of the Court of Appeal Rules provides that stay of execution be made in the superior court in the first instance. Since the applicant made the application to the Industrial Court first, the Claimant's argument that the court lacked jurisdiction had no basis, as the Rules donate jurisdiction to the trial court.

Judgment was delivered on 8th July 2013 and a notice of appeal lodged on 10th July 2013, but the applicant then did nothing - not responding to the draft decree of 4th November 2013, service of the decree on 19th December 2013, or the Claimant's demand letter. It moved only after the bill of costs was filed on 5th March 2014. The applicant never paid the deposit for typing although proceedings were ready by 11th September 2013.

The applicant asserted the Claimant could not repay the decretal sum but adduced no evidence. The Claimant, in his replying affidavit, stated he is not a man of straw, has invested in immovable property whose value exceeds the decretal sum, and would be capable and willing to refund the money should the appeal succeed. The claim of substantial loss was therefore unproven.

The court observed that authorities differ on whether the stay court should assess arguability. It found that the draft memorandum of appeal raised mostly issues of fact rather than law, appeals lying only on matters of law, but held it need not determine the question because inordinate delay and failure to prove irreparable harm sufficed to dispose of the application.