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ELRCDismissedCause No. 1800 of 2011· [2014] KEELRC 1395 (KLR)

Abel Marcel Okoth Okello v Kenya Medical Research Institute (Kemri) [2014] KEELRC 1395 (KLR)

Industrial Court of Kenya at Nairobi
16 October 2014
MOMaureen Onyango
809 words in judgment
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The bottom line

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Kenya's Industrial Court refused to stop execution of a judgment against KEMRI because it filed no draft appeal showing arguable grounds.

What this practically means

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Executive summary

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This ruling of the Industrial Court of Kenya at Nairobi (Maureen Onyango J) determined a Notice of Motion dated 19th May 2014 by KEMRI, the Respondent, seeking stay of execution of the decree arising from an ex-parte judgment delivered on 19th March 2013 in favour of the Claimant, Abel Marcel Okoth Okello. The application was brought under Order 42 Rule 4 of the Civil Procedure Rules, supported by the affidavit of Margaret Rigoro, on grounds that the Respondent had filed a Notice of Appeal against the ruling of 31st March 2014 dismissing its application to set aside the ex-parte judgment, and that execution would cause substantial loss, including to the Kenya public as the Respondent's main customers, and render the intended appeal nugatory. The Claimant opposed, arguing the Respondent was not exempt from the law due to its parastatal status, that no memorandum of appeal was annexed, and that the application was a delaying tactic. The court restated the three principles for stay: an arguable appeal, the appeal being rendered nugatory, and security. It found no draft memorandum of appeal and no grounds of intended appeal disclosed, noting that appeals from the Industrial Court lie only on grounds of law. The court reiterated its earlier view that there was no valid defence and the same judgment would result even after a full hearing. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Whether an arguable appeal was demonstrated

Holding

The applicant failed to demonstrate an arguable appeal as no draft memorandum of appeal was attached and no grounds of the intended appeal were stated even in the supporting affidavit

Reasoning

Appeals from the Industrial Court lie only on grounds of law, so the grounds must be set out in the application or a draft memorandum of appeal attached. Without these the court cannot assess arguability and may presume the appeal is frivolous or an abuse of process intended to delay the decree holder.

p. 2
02

Whether substantial loss/nugatory prejudice was shown

Holding

The court found the application without merit, having earlier concluded there was no valid defence to the claim and that setting aside would not change the outcome

Reasoning

The court reiterated its earlier ruling dismissing the application to set aside the ex-parte judgment, in which it held there was no valid defence and that even if the respondent presented its case the same judgment would follow. It remained of that opinion, so no basis for stay existed.

p. 2

Legal principles established

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  • The principles for granting stay of execution pending appeal are an arguable appeal, that the appeal will be rendered nugatory absent stay, and furnishing of security
  • In a stay application the court must balance the applicant's right of appeal against the decree holder's right to enjoy the judgment, which requires disclosure of the grounds of appeal
  • It is not the court's responsibility to search for authorities cited but not filed by parties

Court orders

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  1. 1.The Notice of Motion dated 19th May 2014 for stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 4

Cases cited (2)

  • Joseph Chege vs. Gikiru Heho
    (2008) eKLR
  • Tropical commodities Supplies Limited and others v International Credit Bank Limited (in liquidation)
    (2004) EA
Jurisdiction invoked
Order 42 Rule 4 of the Civil Procedure Rules and all enabling provisions of the law (stay of execution pending appeal)

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, "Abel Marcel Okoth Okello v Kenya Medical Research Institute (Kemri) [2014] KEELRC 1395 (KLR)", Case Analysis (2014). Cause No. 1800 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1395/eng@2014-10-16

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