Case ID:167466

Attorney General v Rachael Mutheu Ndambuki [2020] eKLR

Case Metadata

Case Number:

Mombasa Civil Application 36 of 2020

Parties:

Attorney General v Rachael Mutheu Ndambuki

Date Delivered:

04 Dec 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Roselyn Naliaka Nambuye, William Ouko, Patrick Omwenga Kiage

Citation:

Attorney General v Rachael Mutheu Ndambuki [2020] eKLR

Case History:

(Being an application for stay of proceedings and execution pending appeal of the ruling of the Employment and Labour Relations Court (Hon. J. Rika, J.) dated 25th October 2019

in

Mombasa ELRC Constitutional Petition No. 2 of 2019)

Court Division:

Civil

County:

Nairobi

History Docket No:

Mombasa ELRC Constitutional Petition No. 2 of 2019

History Judges:

James Rika

History County:

Mombasa

Case Outcome:

Applicant’s application dismissed with costs to the respondent

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: OUKO (P), NAMBUYE & KIAGE JJ.A.)

MOMBASA CIVIL APPLICATION NO. 36 OF 2020

BETWEEN

ATTORNEY GENERAL.......................APPLICANT/INTENDED APPELLANT

AND

RACHAEL MUTHEU NDAMBUKI.............................................. RESPONDENT

(Being an application for stay of proceedings and execution pending appeal of the ruling of the Employment and Labour Relations Court (Hon. J. Rika, J.) dated 25

th

October 2019

in

Mombasa ELRC Constitutional Petition No. 2 of 2019)

***************************

RULING OF THE COURT

1.

HAVING

perused the Notice of Motion dated 2nd June 2020, substantively brought under

Rule 5(2)(b)

of the rules of this Court, seeking an order that this Court be pleased to grant an order of stay of the execution and proceedings of the Employment and Labour Relations Court at Mombasa in Constitutional Petition No. 2 of 2019 pending the filing, hearing and determination of the intended appeal; an order that the hearing on 23rd September 2020, all other proceedings and consequential orders issued be stayed pending the filing, hearing and determination of the intended appeal; an order that this Court be pleased to stay the payment and

execution of the fine of kshs. 250,000 and other consequential orders related to the fine pending the filing, hearing and determination of the intended appeal; and lastly, an order that costs of the application be in the cause; and

2.

UPON

appraising the grounds in the body of the application and the affidavit of

John W. Njogu

sworn on 2nd June 2020 in support of the application together with annextures thereto; and

3.

UPON

appraising the replying affidavit of

Rachel Mutheu Ndambuki

, the respondent, erroneously titled

“further affidavit”

sworn on 19th June 2020 together with annextures thereto; and

4.

UPON

appraising the applicant’s written submissions dated 7th October 2020 together with legal authorities relied upon by the applicant in support of the application; and

5.

UPON

appraising the respondent’s written submissions dated 9th October 2020 together with legal authorities relied upon by the respondent in opposition to the application; and

6.

HAVING

considered the principles that guide this Court in determining applications under

rule 5(2)(b)

, of this Court’s rules as summarized in

Stanley Kang’ethe vs. Tony Keter & Others [2013]eKLR

, we are satisfied the applicant’s draft memorandum of appeal annexed to the application contains arguable points and has therefore satisfied the first of the twin principles required to be met for grant of relief under the above rule; and

7.

UPON

applying the same test to the rival pleadings and written submissions with regard to satisfaction of the second of the twin principles for granting of relief under the said rule, namely, that if the relief sought is not granted, the intended appeal if successful will be rendered nugatory, we find this has not been established for the reason that what is threatened is payment of a fine imposed for the alleged contempt of court orders. There is nothing in the applicant’s supporting evidence to suggest that once the fine is paid the same will not be recoverable should the intended appeal ultimately succeed; and

8.

HAVING

reached that conclusion, we make an order as follows:

1. The applicant’s application dated 2

nd

June 2020 is dismissed with costs to the respondent.

Dated and Delivered at Nairobi this 4

th

day of December, 2020.

W. OUKO (P)

.....................................

JUDGE OF APPEAL

R. N. NAMBUYE

.......................................

JUDGE OF APPEAL

P.O KIAGE

....................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR