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ELRCDismissedCause No. not stated in judgment (Respondent's cited Cause No.772 of 2010 is a different matter)· [2014] KEELRC 574 (KLR)

Irene Catherine Atieno v Petro Oil Kenya Limited [2014] KEELRC 574 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
3 March 2014
1,481 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to kill a stalled appeal but refused to let delay continue, giving the appealing party just 15 days before directions.

What this practically means

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Executive summary

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The claimant moved the Industrial Court by Notice of Motion dated 9th September 2013, invoking Rules 82 and 83 of the Appellate Jurisdiction Act, seeking dismissal of the respondent's Notice of Appeal filed on 21st January 2011 for want of prosecution, and release to the claimant of Kshs.1,187,657.00 (with accrued interest, Kshs.1,302,248.00 as at 6th August 2013) deposited in a joint interest-earning account at Bank of Africa, Mombasa Branch pursuant to a conditional stay of execution granted on 9th February 2012. The claimant argued that over three years had passed without an appeal being filed and that the respondent, having applied for and obtained the conditional stay, could not claim to be waiting for notice of delivery of the ruling. The respondent opposed, contending the court lacked jurisdiction because the Appellate Jurisdiction Act and Court of Appeal Rules govern only Court of Appeal proceedings (citing Owners of the Motor Vehicle Vessel 'Lilian S' and the Keroche Industries case), and that having applied for typed proceedings within 30 days, time was not computed against it. The court agreed that reliance on Rules 82 and 83 of the Appellate Jurisdiction Act was premature, the Industrial Court having its own procedure rules, but exercised its inherent powers under sections 3, 12 and 20 of the Industrial Court Act to act without undue regard to technicalities. Noting the absence of any draft appeal or memorandum despite the respondent's access to the court file, the court found unchecked inaction would greatly injustice the party holding judgment. The application was not granted as sought: the conditional stay was continued for 15 days only, the matter was set for mention on the 20th for further directions, and each party was to bear its own costs. Dated and delivered at Nairobi on 3rd March 2014 by M. Mbaru, Judge.

Key legal issues

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01

Jurisdiction over an application premised on Rules 82 and 83 of the Appellate Jurisdiction Act

Holding

The court agreed with the respondent that those rules govern only Court of Appeal proceedings and that the claimant's recourse to them in the Industrial Court was premature and misconceived as a basis for the application.

Reasoning

The court reasoned that the Appellate Jurisdiction Act and its rules apply to Court of Appeal proceedings, while the Industrial Court has its own Industrial Court Procedure Rules applicable to all proceedings before it. Since the Industrial Court rules were not lacking for the relief sought, reliance on the Appellate Jurisdiction Act rules was premature. Nevertheless, the court invoked its inherent powers and section 20 of the Industrial Court Act to act without undue regard to technicalities and give directions that would do justice between the represented parties.

p. 2
02

Whether the Notice of Appeal should be dismissed for want of prosecution and the deposit released

Holding

The court did not dismiss the Notice of Appeal outright; it found the respondent's inaction unacceptable and gave time-bound directions: the conditional stay would lapse after 15 days and the matter would be mentioned for further directions.

Reasoning

The court noted the respondent applied for stay pending appeal and obtained a conditional stay on 9th February 2012, so it could not credibly claim to be waiting for notice of delivery of the ruling. It also had access to the court file when filing its replying affidavit, yet filed no appeal or draft memorandum of appeal. The court held that unchecked inaction would greatly injustice the party holding judgment, and that no party should circumvent justice under the guise of technicalities.

p. 2

Legal principles established

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  • The Appellate Jurisdiction Act and the Court of Appeal Rules apply only to proceedings before the Court of Appeal; an application under those rules cannot be lodged before the Industrial Court, which is governed by its own procedure rules.
  • Where the Industrial Court's own rules lack a remedy, a party may resort to other written law, particularly High Court procedure rules, the Industrial Court being a superior court of record.
  • The Industrial Court exercises inherent powers under sections 3 and 12 of the Industrial Court Act and must act without undue regard to technicalities under section 20.
  • A party enjoying conditional stay pending an appeal cannot rely on non-service of notice of delivery of the ruling as an excuse for inaction where it applied for and had interest in that ruling, and inaction risking injustice to a party holding judgment will not be allowed to progress unchecked.

Court orders

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  1. 1.The stay granted to the respondent on 9th February 2012 will remain in force for the next 15 days
  2. 2.The matter to be placed for mention on the 20th where the court shall give further directions
  3. 3.Each party will bear their own costs

Authorities

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Legislation

  • Appellate Jurisdiction ActRules 82 and 83 (referred to in places as sections 82 and 83)
  • Court of Appeal RulesRule 82
  • Industrial Court ActSections 3, 12 and 20
  • Industrial Court Procedure Rulesnot specified

Cases cited (2)

  • Owners of the Motor Vehicle Vessel 'Lilian S' vs Caltex Oil [Kenya] Ltd
    [1989] KLR 1
  • Kenya Union of Commercial Food and Allied Workers vs Keroche Industries Ltd and 2 others
    Cause No.772 of 2010
Jurisdiction invoked
Sections 3, 12 and 20 of the Industrial Court Act (inherent powers and disposal without undue regard to technicalities)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Irene Catherine Atieno v Petro Oil Kenya Limited [2014] KEELRC 574 (KLR)", Case Analysis (2014). Cause No. not stated in judgment (Respondent's cited Cause No.772 of 2010 is a different matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/574/eng@2014-03-03

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