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ELRCDismissed· [2020] KEELRC 391 (KLR)

Registered Trusteesof the Sisters of Mercy (Kenya) t/a “the Mater Misericordiae Hospital” v Benard Omondi Ngode [2020] KEELRC 391 (KLR)

Employment and Labour Relations Court
6 October 2020
HWHellen Wasilwa
2,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan hospital lost its bid to postpone paying a judgment because it failed to attach the very decision it wanted to stay.

What this practically means

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Executive summary

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The Applicant, The Registered Trustees of the Sisters of Mercy (Kenya) t/a The Mater Misericordiae Hospital, filed a Notice of Motion dated 17th July 2020 seeking extension of a stay of execution of the judgment and decree of the lower court dated 22/06/2020 pending an intended appeal, with costs to abide the appeal. It relied on its Memorandum of Appeal dated 16/07/2020, an application for certified proceedings, and offered a bank guarantee as security, arguing that payment of the money decree would hamper its operations as a hospital and that the respondent had not shown ability to refund the decretal amount. The Respondent, Benard Omondi Ngode, opposed the application as incompetent and an abuse of process, arguing that the applicant had not demonstrated substantial loss or an arguable appeal, that part of the decree remained unpaid, and that the applicant had consented to pay terminal dues. He also noted that a consent order on pension money had been adopted by the court and could not be appealed against absent fraud or duress. The court, per Wasilwa J, observed that the application lacked the requisite documents: the lower court's judgment sought to be stayed had not been attached, and the claim that the judgment was pegged on a consent of the parties could not be deduced in the absence of that documentation. Finding the application unmerited, the court dismissed it with costs in the appeal.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were satisfied

Holding

The application was not merited as the applicant failed to satisfy the conditions for stay, the application lacking the necessary documentation

Reasoning

The court noted that the application lacked the requisite documents, in particular the lower court's judgment which the applicant sought to stay. Without the judgment the court could not determine substantial loss or address the question of security. The respondent's contention that the decree was pegged on a consent of the parties also could not be deduced in the absence of the requisite documentation. The application was therefore dismissed.

p. 3

Legal principles established

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  • An applicant for stay of execution must place before the court the requisite documents, including the judgment and decree sought to be stayed, to enable the court address substantial loss and security

Court orders

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  1. 1.The Notice of Motion application dated 17th July 2020 seeking extension of stay of execution is dismissed
  2. 2.Costs in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Employment and Labour Relations Court (Procedure) Rules, 2016section 8
  • Evidence ActNot specified

Cases cited (10)

  • National Industrial Credit Bank Limited vs. Aquinas Francis Wasike & Another
    Nairobi Civil Application No. 238 of 2005 (UR)
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • Ginson Kiragu Mberia alias Ginson Kiragu Njagi v Stanley Bundi Rimberia and another
    Civil Application No. 106 of 2019 (UR 72/19)
  • Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali
    Civil Application No. 354 of 2004 (UR 183/04)
  • Regnoil Kenya Limited v Winfred Njeri Karanja
    Civil Application No. Nai 329 of 2018 (UR 266 of 2018)
  • Machira t/a Machira & Co. Advocates v East African Standard (No. 2)
    [2002] 2 KLR 63
  • Jacob Wandera v Ali Kadima Yunus
    [2016] eKLR
  • Kenya Shell Limited v Kibiru & another
    [1986] KLR 410
  • Panaj Automobiles (K) Ltd v Matheka Kaluku & another
    [2019] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
On appeal from
lower court (not specified in judgment)
Jurisdiction invoked
Stay of execution pending intended appeal under Order 42 Rule 6(2) of the Civil Procedure Rules / section 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Registered Trusteesof the Sisters of Mercy (Kenya) t/a “the Mater Misericordiae Hospital” v Benard Omondi Ngode [2020] KEELRC 391 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/391/eng@2020-10-06

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