Josphat Cosmas Onyango v Tribe Hotel Limited [2018] KEELRC 686 (KLR)

The court perused the Court of Appeal decision and concluded that it addressed only the contempt finding, holding that the judge had failed to establish wilfulness and to address whether the orders required payment of salary after the claimant had terminated his own employment. The Court of Appeal identified unconsidered factual questions but did not itself determine whether the claimant refused to report back to work or was employed elsewhere. Accordingly the claimant's review application in the Court of Appeal would have no impact on this suit.

Applying the rationale for staying proceedings, the court found the predicate for the application — that the claimant could not prosecute his claim or defend the counterclaim before the review application was determined — was unfounded, because the Court of Appeal made no binding findings on the employment issues. The respondent's prejudice in having its counterclaim remain unprosecuted reinforced the refusal of the stay.