Patrick Onguso Nasibi v National Water Conservation & another [2014] KEELRC 267 (KLR)
The bottom line
#A Kenyan employer lost its bid to postpone paying a judgment because it had already taken its appeal question to the Court of Appeal instead.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay of execution where the applicant has already applied to the Court of Appeal for extension of time
Both the Industrial Court and the Court of Appeal have concurrent jurisdiction to grant stay, but once the Court of Appeal is seized of the matter, the Industrial Court becomes functus officio and the application should be pursued in the Court of Appeal.
The court found that Rule 41 of the Court of Appeal Rules and Section 7 of the Appellate Jurisdiction Act give both courts power to grant stay and extension of time. However, the Respondent had chosen to go to the Court of Appeal, which has concurrent jurisdiction. Once seized, the Court of Appeal alone can confirm whether the extension application will succeed; granting stay in this court would amount to speculative orders, which the court cannot do.
Whether stay of execution pending appeal can be granted where no appeal has been filed
Stay pending appeal presupposes an arguable appeal that would be rendered nugatory; here there is no appeal, only a pending application for leave to file notice of appeal out of time.
The court noted that no appeal has been filed; the applicant has only sought leave to file notice of appeal out of time in the Court of Appeal. Stay of execution is granted on the grounds of an arguable appeal which would be rendered nugatory. The court also observed the Respondent had not sought certified proceedings or a certificate of delay, and the intended appeal raised matters of fact as well as law despite the Industrial Court Act restricting appeals to issues of law only.
Legal principles established
#- An appeal does not operate as a stay of execution.
- Once the Court of Appeal is seized of a matter, this court ceases to have jurisdiction and becomes functus officio until the matter is remitted back.
- Under Rule 41 of the Court of Appeal Rules 2010, the Court of Appeal may entertain stay or extension applications notwithstanding that no application was first made to the superior court.
Court orders
#- 1.The Respondent's Notice of Motion dated 15th May 2014 seeking stay of execution of the decree is dismissed
- 2.Costs of the application awarded to the Claimant
- Jurisdiction invoked
- Section 17 of the Industrial Court Act, 2011; Rule 16(2), 27(4) and 31(2) of the Industrial Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Onguso Nasibi v National Water Conservation & another [2014] KEELRC 267 (KLR)", Case Analysis (2014). Cause No. 1727 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/267/eng@2014-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.