Ogas Services (U) Limited v Bakashaba (Labour Dispute Miscellaneous Application 174 of 2019)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Industrial Court held that the registrar erred in dismissing the application for stay of execution after finding that the statutory conditions under Order 43 rule 3 of the Civil Procedure Rules were satisfied. Where an application for leave to appeal out of time is pending before the court, the registrar should not have relied on proceedings before the labour officer to deny the stay. The court set aside the registrar's orders and granted stay of execution pending determination of the application for leave to appeal out of time, conditional upon the applicant depositing the decretal amount as security within seven days.

Outcome

Registrar's ruling set aside; stay of execution granted pending determination of application for leave to appeal out of time, conditional upon deposit of decretal amount as security

Facts

The applicant company sought to set aside the registrar's ruling dismissing its application for stay of execution of a labour officer's award in KCCA labour complaint No. 194/2018. The registrar had found that the applicant satisfied two of the three statutory conditions for stay under Order 43 rule 3 of the Civil Procedure Rules — namely that substantial loss would result and that security would be furnished — but dismissed the application on grounds that the applicant had delayed 57 days in filing and that there was no valid appeal on record because the notice of appeal had been filed out of time without leave. At the time of the ruling, the applicant had a pending application before the Industrial Court for leave to file a notice of appeal out of time, which had not yet been heard.

Issues

1. Whether the learned registrar erred by dismissing the application for stay of execution after finding that the applicant would suffer substantial loss if execution was not stayed.
2. Whether the learned registrar erred by dismissing the application after finding that the applicant was willing and ready to furnish security for due performance of the decree.
3. Whether the learned registrar erred when she held that the application was brought with unreasonable delay.
4. Whether the learned registrar erred when she disregarded evaluation of the grounds for stay of execution and relied on the proceedings in the labour office.
5. Whether it is just and equitable that the dismissal be set aside and execution of the award be stayed until disposal of the appeal.

Orders

• The orders of the Acting Registrar are set aside.
• An order of stay of execution of the labour officer's orders in KCCA labour complaint No. 194/2018 shall issue, pending the determination of an application for leave to appeal out of time.
• The applicant will deposit in court as security the decretal amount in the above KCCA complaint within 07 days of the ruling of this court.
• The application for leave shall be fixed for hearing on or before 20/12/2019 and the applicant will follow up.
• No order as to costs is made.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Rules Order 43 rule 3
• Civil Procedure Rules Order 43 rule 4

Cases cited (1)

• Mukasa Frederick & Mulindwa Alice v Jade Petroleum Ltd (HCMA No. 2374 of 2016)

The original judgment as reported. Read the original PDF before relying on any passage.