Bernard Kuria & 2 others v Kasturi Limited [2014] KEELRC 274 (KLR)
The bottom line
#A Kenyan employment court refused to pause a Kshs 1.48 million judgment because the employer's appeal argued facts, not law, and was filed late.
What this practically means
#Executive summary
#Key legal issues
#Whether the proposed grounds of appeal are matters of law under section 17(2) of the Industrial Court Act
All five grounds concern findings of fact or the cumulative result of factual findings, and therefore do not qualify as matters of law
The court examined each of the five grounds of appeal seriatim. The grounds on service of the hearing notice, proper hearing of the claim, adequacy of the memorandum of defence, and disregard of affidavit evidence were each held to be matters of fact. The fifth ground, that the judge erred in dismissing the setting-aside application, was merely a consequence of the first four. Consequently no arguable appeal was demonstrated.
Whether the intended appeal is properly before the court within time
The appeal was out of time; the ruling having been delivered on 9th April 2014, the appeal should have been filed by 9th June 2014, and no extension of time had been sought
The court noted that appeals must be filed within 60 days. The ruling was delivered on 9th April 2014, so the deadline was 9th June 2014. The applicant had neither filed the appeal nor applied for extension of time. Additionally, the applicant had not requested certified copies of proceedings and judgment, so no certificate of delay would cover the intervening period, making leave to file out of time an uphill task.
Whether substantial loss/irreparable harm needed consideration
Having found no arguable appeal and that the applicant was out of time, the court did not consider whether irreparable loss was demonstrated
The court applied the two-limb Githunguri test. Since the first limb (arguable appeal) failed and the appeal was also out of time, the court found it unnecessary to address the second limb on whether the appeal would be rendered nugatory or whether substantial loss would be suffered.
Legal principles established
#- An appeal from the Industrial Court lies only on matters of law, so proposed grounds of appeal premised on findings of fact do not qualify
- The guiding principles for stay of execution pending appeal are that the appeal must be arguable and, if successful, should not be rendered nugatory
Court orders
#- 1.The application dated 6th May 2014 is dismissed with costs
- Jurisdiction invoked
- Rule 31(2) of the Industrial Court (Procedure) Rules read with Order 42 of the Civil Procedure Rules and section 3A of the Civil Procedure Act; right of appeal donated by section 17 of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Kuria & 2 others v Kasturi Limited [2014] KEELRC 274 (KLR)", Case Analysis (2014). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/274/eng@2014-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.