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

Court
Employment and Labour Relations Court at Nairobi
Category
Civil
Judge(s)
Hon. Justice Hellen S. Wasilwa
Judgment Date
October 06, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Registered Trustees of the Sisters of Mercy (Kenya) t/a the Mater Misericordiae Hospital v Benard Omondi Ngode, highlighting key legal findings and implications for healthcare liability.

Case Brief: Registered Trusteesof the Sisters of Mercy (Kenya) t/a “the Mater Misericordiae Hospital” v Benard Omondi Ngode [2020] eKLR

1. Case Information:
- Name of the Case: The Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” v. Benard Omondi Ngode
- Case Number: Appeal No. 46 of 2020 (E29/2020)
- Court: Employment and Labour Relations Court at Nairobi
- Date Delivered: 6th October 2020
- Category of Law: Civil
- Judge(s): Hon. Justice Hellen S. Wasilwa
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include whether the Applicant/Appellant is entitled to a stay of execution of the lower court's judgment pending the hearing and determination of the Intended Appeal, and if so, what conditions should apply regarding security for the decretal amount.

3. Facts of the Case:
The Applicant, The Registered Trustees of the Sisters of Mercy (Kenya) operating as The Mater Misericordiae Hospital, filed a Notice of Motion Application seeking a stay of execution of a judgment from the lower court dated 22nd June 2020, which the Applicant intends to appeal. The Respondent, Benard Omondi Ngode, had been awarded a decree for terminal dues and pension benefits, which the Applicant has not paid. The Applicant argues that if the stay is not granted, the Respondent will not be able to refund any payments if the appeal succeeds. The Respondent contends that the Applicant's application is incompetent and that they have failed to demonstrate the likelihood of success of the appeal or substantial loss.

4. Procedural History:
The Applicant initially received a 30-day stay of execution from the lower court, which expired on 21st July 2020. The Applicant filed a Memorandum of Appeal and sought an extension of the stay. The Respondent responded with a Replying Affidavit asserting the application was incompetent and that the Applicant had not satisfied the conditions for a stay. The court heard arguments from both parties, focusing on the conditions for granting a stay under the Civil Procedure Rules.

5. Analysis:
- Rules: The court considered Order 42 Rule 6(2) of the Civil Procedure Rules, which outlines the conditions for granting a stay of execution. The applicant must demonstrate that substantial loss may result if the stay is not granted, that the application was made without unreasonable delay, and that security for the due performance of the decree has been provided.

- Case Law: The court referenced several cases to establish precedent, including *National Industrial Credit Bank Limited vs. Aquinas Francis Wasike & Another* regarding the burden on the respondent to show the ability to refund the decretal sum, and *Housing Finance Company of Kenya v. Sharok Kher Mohamed Ali Hirji & another* concerning the potential undue hardship on the applicant if the stay is not granted.

- Application: The court found that the Applicant had not provided sufficient documentation from the lower court to support their claims. The Respondent's assertion of being a "man of means" was deemed insufficient to demonstrate his ability to refund any amount paid to him. The court concluded that the Applicant's failure to provide the necessary documents and evidence of substantial loss rendered the application for a stay unmerited.

6. Conclusion:
The court dismissed the Applicant's application for a stay of execution, concluding that the application lacked the requisite documentation and did not meet the conditions set forth in the Civil Procedure Rules. The dismissal implies that the Applicant must comply with the lower court's judgment unless the appeal is resolved in their favor.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the decision was made by a single judge.

8. Summary:
The Employment and Labour Relations Court in Kenya dismissed the application by The Registered Trustees of the Sisters of Mercy for a stay of execution of a judgment pending appeal. The court found that the Applicant failed to demonstrate substantial loss and did not provide the necessary documentation to support their claims. This ruling underscores the importance of adhering to procedural requirements in civil applications, particularly regarding the provision of relevant documentation and evidence to support claims for a stay of execution.

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