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ELRCDismissedNot stated in excerpt (Industrial Cause award delivered 19th November 2013)· [2014] KEELRC 972 (KLR)

Philemon Wachara Obenge v Easy Mart Limited [2014] KEELRC 972 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
12 May 2014
LNLinnet Ndolo
1,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to delay paying an unfair termination award because it never filed a notice of appeal within 14 days.

What this practically means

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Executive summary

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This ruling of the Industrial Court at Nairobi, delivered by Linnet Ndolo J on 12th May 2014, determines the Respondent's Notice of Motion dated 18th December 2013 seeking a stay of execution of the Court's award of 19th November 2013, by which the Claimant was awarded Kshs. 671,000 for unfair termination and accrued terminal benefits. The Respondent, aggrieved by the award, sought stay pending an intended appeal, relying on the non-supply of the certified award and proceedings, an arguable appeal, and the balance of convenience. Upon moving the Duty Judge, Rika J, it had obtained a temporary stay conditional on depositing the decretal sum in Court. The Claimant opposed the application, arguing the Court lacked jurisdiction to grant the orders sought, that the Civil Procedure Rules were inapplicable, that stay pending appeal from the Industrial Court lay only in the Court of Appeal under Rule 5(2)(b), and that the Respondent's right of appeal had expired for want of a notice of appeal within fourteen days under Rule 75. The Court agreed: no notice of appeal had been filed; the notice procedure requires neither extraction of the decree nor attachment of the award; and the Respondent's own letter of 20th November 2013 showed an intention to appeal from the day after the award, defeating the excuse of non-supply. No extension of time application was before the Court. The application was dismissed with costs, and the Deputy Registrar was directed to release the deposited decretal amount to the Claimant within thirty days.

Key legal issues

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01

Jurisdiction to grant stay pending intended appeal where no notice of appeal has been filed

Holding

Stay refused because the Respondent had no subsisting right of appeal, having filed no notice of appeal within the 14 days prescribed by Rule 75 of the Court of Appeal Rules and having made no application for extension of time

Reasoning

Rule 75(2) requires a notice of appeal to be lodged within fourteen days of the decision. The award was delivered on 19th November 2013; by the date of hearing no notice of appeal had been filed. Counsel's explanation - non-supply of the award - was contradicted by his own letter of 20th November 2013 showing an intention to appeal. No extension of time application was before the Court, so the right of appeal had lapsed and stay could not issue.

p. 2
02

Whether non-supply of the award excuses failure to lodge a notice of appeal

Holding

No; the notice of appeal procedure is flexible and does not require the award or an extracted decree, so the excuse was invalid

Reasoning

The Court held that Rule 75 provides an unfettered and flexible procedure allowing a party to indicate an intention to appeal in good time without the award. Further, the Respondent's letter of 20th November 2013 demonstrated that he had already decided to appeal the day after delivery of the award, undermining the claim that he needed the award first.

p. 3

Legal principles established

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  • The first step towards an appeal to the Court of Appeal is lodging a notice of appeal within 14 days of the decision, and neither extraction of the decree nor attachment of the award is required
  • A party who fails to exercise the right of appeal within the prescribed time without valid reason cannot obtain a stay of execution

Court orders

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  1. 1.The Respondent's application dated 18th December 2013 is dismissed with costs to the Claimant
  2. 2.The Deputy Registrar is directed to release the decretal amount deposited in Court to the Claimant within 30 days

Authorities

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Legislation

  • Industrial Court ActSection 17(1)
  • Industrial Court ActSection 17(2)
  • Constitution of KenyaArticle 164(3)
  • Court of Appeal RulesRule 75 (and 5(2)(b) as invoked by Claimant)
  • Civil Procedure Rulesrelied on by Respondent (held inapplicable to this Court per objection)
Jurisdiction invoked
Industrial Court Act, 2011 (application for stay of execution pending intended appeal; no appellate jurisdiction exercised)

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, "Philemon Wachara Obenge v Easy Mart Limited [2014] KEELRC 972 (KLR)", Case Analysis (2014). Not stated in excerpt (Industrial Cause award delivered 19th November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/972/eng@2014-05-12

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