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Court of AppealDismissedCivil Application E026 of 2024· [2024] KECA 1914 (KLR)

Unigroup Transporters Limited v Kiteke

Court of Appeal
11 October 2024
1,901 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt an employment judgment that had already been carried out, ruling a stay is pointless once execution is complete.

What this practically means

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Executive summary

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Unigroup Transporters Limited applied to the Court of Appeal at Mombasa under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the Employment and Labour Relations Court (A. K. Nzei, J.) dated 31st July 2023, and for stay of proceedings in CMELRC Cause No. 458 of 2018, pending its intended appeal. The ELRC had allowed the respondent's appeal and set aside a ruling of the Chief Magistrate's Court that had permitted review of an earlier ruling dismissing the applicant's attempt to set aside ex parte proceedings. The applicant's single ground of appeal was that the impugned judgment locked it out from being heard in the trial court. The respondent opposed, arguing the application was sub judice, forum shopping and an abuse of process given a parallel stay application pending at the ELRC. The Court of Appeal (Murgor, Laibuta and Odunga, JJA) restated the settled twin principles: an applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay, both conjunctively. It held that what was sought to be stayed had already taken place - the trial court had implemented the ELRC judgment, leaving nothing capable of being stayed - so the Motion was overtaken by events and the intended appeal merely academic and not arguable. It further held the single ground was a matter of procedural discretion of the trial court, far below the threshold for appeal as a point of law. Not needing to address the nugatory limb, the Court dismissed the Motion with costs to the respondent.

Key legal issues

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01

Twin principles for stay under rule 5(2)(b)

Holding

The applicant must show an arguable appeal and that the appeal, if successful, would be rendered nugatory absent stay; the conditions are conjunctive

Reasoning

The Court restated the long-settled rule 5(2)(b) principles, citing its own precedents. Both limbs must be satisfied; failure on the first limb disposes of the application without need to consider the second.

02

Mootness where execution has already occurred

Holding

Stay cannot issue where the judgment sought to be stayed has already been implemented; the intended appeal becomes academic and not arguable

Reasoning

The trial court had already implemented the ELRC judgment by proceeding to judgment delivery; there were no proceedings left capable of being stayed, so the first limb of the twin principles failed.

p. 3
03

Procedural discretion as a ground of appeal

Holding

The single ground - that the applicant was locked out from being heard - is a matter of procedural discretion of the trial court, far from the threshold for appeal to this Court as a point of law

Reasoning

The Court held that the ground raised falls within the trial court's discretionary powers under section 72(1) of the Civil Procedure Act and does not meet the threshold for appeal as a point of law.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the conjunctive conditions of an arguable appeal and that the appeal would be rendered nugatory absent stay
  • Where what is sought to be stayed has already taken place, the application is overtaken by events and the intended appeal is merely academic and not arguable

Court orders

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  1. 1.The applicant's Motion dated 12th March 2024 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Act, Cap. 21section 72(1)

Cases cited (9)

  • Center Star Limited & Another vs. Halima Mahmood Ali & 2 Others
    [2018] eKLR

    Twin principles for grant of orders under rule 5(2)(b)

  • Trustees of the Kenya Assemblies of God vs. Suresh Kumar Sofat & 2 Others
    [2015] eKLR

    Twin principles for grant of orders under rule 5(2)(b)

  • Alfred Mincha Ndubi vs. Standard Limited
    [2020] eKLR

    Twin principles for grant of orders under rule 5(2)(b)

  • JMK vs. MWM & Another
    [2015] eKLR

    Importance of observing rules of natural justice, hearing a person likely to be adversely affected

  • County Director of Planning and Architecture, County Government of Mombasa v Makupa Transit Shade Limited
    [2017] eKLR

    Twin principles for grant of orders under rule 5(2)(b)

  • Anne Wanjiku Kibeh vs. Clement Kungu Waibara and IEBC
    [2020] eKLR

    Applicants must demonstrate arguable appeal and nugatory-ness for stay orders

  • Kenya Tea Growers Association and Another vs. Kenya Planters Agricultural Workers Union
    [2012] eKLR

    Twin principles for stay pending appeal

  • Ahmed Musa Ismail vs. Kumba Ole Ntamorua and 4 Others
    [2014] eKLR

    Twin principles for stay pending appeal

  • Stanley N. Muriithi & another vs. Bernard Munene Ithiga
    [2016] eKLR

    Procedural discretion of trial court not a point of law for appeal

On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
ELRC Appeal No. 64 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - stay of execution and proceedings pending appeal

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, "Unigroup Transporters Limited v Kiteke", Case Analysis (2024). Civil Application E026 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1914/eng@2024-10-11

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