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ELRCDismissedNot stated in the judgment· [2015] KEELRC 1643 (KLR)

Joseph Kamau & 468 others v G4S Security Services (Kenya) Limited [2015] KEELRC 1643 (KLR)

Employment and Labour Relations Court
2 October 2015
563 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 pause a case of 469 workers' claims, ruling the employer showed no real loss from continuing while it appeals.

What this practically means

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Executive summary

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The Respondent/Applicant filed a notice of motion dated 29th June 2015 seeking a stay of proceedings pending an intended appeal to the Court of Appeal against a ruling delivered on 15th May 2015, in a matter involving 469 claims of which the applicant contended 464 were time barred. The application was supported by grounds that the applicant had filed notice of appeal, had arguable grounds, and that the appeal would be rendered nugatory if proceedings continued and any award was executed. The Claimants, through Joseph Kamau, the 1st Claimant, opposed the application, arguing it sought to defeat the principle of just and expeditious disposal under Section 3 of the Employment and Labour Relations Act, 2007; that there was inordinate delay of about a month in bringing the application; that the ruling was based on a sound interpretation of Section 90 of the Employment Act, 2007; and that the applicant would suffer no loss since costs would be recoverable. Relying on Wanyiri Kihio v Surinderal Singh Syan & 2 others (High Court, Civil Appeal 48 of 2008, Okwengu J), the court held that an applicant for stay of proceedings must demonstrate substantial loss. It found the applicant would have the opportunity to raise the limitation issue in an appeal against the final judgment, and would recover costs if successful. The court held that a stay derogates from the overriding objective of expeditious disposal and that the balance of convenience favoured allowing the case to proceed. Finding no sufficient cause established, the court dismissed the application on 2nd October 2015.

Key legal issues

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01

Whether sufficient cause was established for a stay of proceedings pending the intended appeal

Holding

The application was dismissed. The court held that the applicant would suffer no substantial loss if proceedings continued, as it could raise the limitation issue on appeal and recover costs if successful; delay of about a month and the expeditious-disposal principle weighed against a stay.

Reasoning

Relying on Wanyiri Kihio v Surinderal Singh Syan & 2 others, the court held that an applicant for stay of proceedings must show substantial loss. Here, if the intended appeal on limitation succeeded, the applicant would be entitled to costs in both courts, so the appeal would not be rendered nugatory. A stay derogates from the overriding objective of expeditious disposal, the balance of convenience favoured hearing the case to conclusion, and there was inordinate delay of one month in filing the application.

p. 2
02

Whether the claim of 464 time-barred claims justified staying the proceedings

Holding

Impliedly rejected as a ground for stay; the court held the applicant would have the opportunity to raise the issue of competence of the suit (limitation) in an appeal against the final judgment.

Reasoning

The applicant argued that 464 of the 469 claims were time barred and that the appeal against the ruling on Section 90 of the Employment Act had high chances of success. The court, adopting the reasoning in Wanyiri Kihio, held that the applicant retains the right to raise the competence/limitation issue in an appeal against the final judgment, so no substantial loss would arise from continuing with the proceedings.

p. 2

Legal principles established

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  • An applicant for stay of proceedings pending appeal must demonstrate that substantial loss will be suffered if the stay is not granted; the possibility of raising the issue later on appeal negates such loss.
  • A stay of proceedings derogates from the overriding objective of hearing and determining cases expeditiously, and the balance of convenience favours allowing a case to proceed to its conclusion.

Court orders

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  1. 1.The notice of motion dated 29th June 2015 seeking stay of proceedings pending appeal is dismissed

Authorities

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Legislation

  • Employment and Labour Relations ActSection 3
  • Employment ActSection 90

Cases cited (1)

  • Wanyiri Kihio v. Surinderal Singh Syan & 2 others
    Civil Appeal 48 of 2008
Jurisdiction invoked
Inherent powers to grant stay of proceedings pending appeal under the Employment and Labour Relations Act, 2007 and rules of the Court

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, "Joseph Kamau & 468 others v G4S Security Services (Kenya) Limited [2015] KEELRC 1643 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1643/eng@2015-10-02

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