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ELRCDismissedNotice of motion dated 7th January 2013 (Civil Application No. Nai. 41 of 2013 (UR41/2013) pending in the Court of Appeal)· [2013] KEELRC 616 (KLR)

Patrick Njuguna Kariuki v Del Monte (K) Limited [2013] KEELRC 616 (KLR)

Industrial Court of Kenya
8 July 2013
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Delmonte Kenya lost its bid to freeze a Kshs.8.8 million award because a court cannot reconsider the same stay request twice, especially once the Court of Appeal is involved.

What this practically means

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Executive summary

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By a notice of motion dated 7th January 2013, Delmonte Kenya Ltd sought a stay of release of a judgment sum of Kshs.8,863,282.29 deposited in court and a stay of implementation of an Award by Hon. Justice Ongaya (which had also ordered re-engagement of the Claimant from 1st December 2012), together with stay of orders made on 26th October 2012, pending the hearing of its stay application in the Court of Appeal (Civil Application No. Nai. 41 of 2013 (UR41/2013)). The Claimant, Patrick Njuguna Kariuki, opposed the application, arguing that the Applicant had already exhausted its right to a stay when the trial judge dismissed a similar application on 17th December 2012, that the Industrial Court Act 2011 conferred no jurisdiction to grant stay pending a Court of Appeal application, and that the motion was an abuse of process. Mathews N. Nduma, Principal Judge, framed two issues: whether the Court could review the trial judge's ruling, and whether it had jurisdiction where a similar application was pending in the Court of Appeal. On the first, the Court held the motion was a fresh application on the same facts, not a review under Rule 32 of the Industrial Court (Procedure) Rules 2010, and the Court could not sit on appeal from its own decision. On the second, the Court held that the filing of the application in the Court of Appeal immediately pre-empted its jurisdiction, and no appeal had even been lodged. The application was dismissed with costs on 8th July 2013.

Key legal issues

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01

Whether the Court could entertain a fresh stay application on the same facts already determined by the trial judge

Holding

The application was not couched as a review under Rule 32 and raised no review grounds; the Court could not revisit its own ruling, so the application failed on this point alone.

Reasoning

All issues - arguability of the appeal, nugatory effect and balance of convenience - had been raised and determined in the ruling of 17th December 2012. The fresh application sought the same relief on the same facts without invoking the limited review grounds of new evidence, error apparent on the face of the record, breach of written law or other sufficient reasons. A court cannot sit on appeal from its own decision, and granting the application would give the Applicant a second bite at the cherry.

p. 2
02

Whether the Court had jurisdiction to grant stay pending a similar application in the Court of Appeal

Holding

The Court had no such jurisdiction: the filing of the application in the Court of Appeal pre-empted the trial court's jurisdiction, and neither the Industrial Court Act 2011 nor the Rules made provision for stay pending a Court of Appeal application.

Reasoning

Once the Applicant presented its stay application to the Court of Appeal, the trial court's jurisdiction was immediately pre-empted and the Court had to await the outcome there. Further, no appeal had yet been lodged, and the Industrial Court Act 2011 and the Court's Rules contained no provision empowering the Court to grant stay pending an application in the Court of Appeal. The inherent jurisdiction issue did not need to be canvassed given the express provisions already canvassed before the trial judge.

p. 3

Legal principles established

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  • A court may only review its own decision on the limited grounds set out in Rule 32(1) of the Industrial Court (Procedure) Rules 2010, and cannot sit on appeal from its own decision.
  • Once an application for stay is filed in the Court of Appeal, the jurisdiction of the trial court over the same subject matter is pre-empted.

Court orders

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  1. 1.The application dated 7th January, 2013 is dismissed with costs.

Authorities

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Legislation

  • Industrial Court Act2011
  • Industrial Court (Procedure) RulesRule 32(1)
Jurisdiction invoked
Industrial Court Act, 2011 and Industrial Court (Procedure) Rules 2010

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, "Patrick Njuguna Kariuki v Del Monte (K) Limited [2013] KEELRC 616 (KLR)", Case Analysis (2013). Notice of motion dated 7th January 2013 (Civil Application No. Nai. 41 of 2013 (UR41/2013) pending in the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/616/eng@2013-07-08

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