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ELRCPartially AllowedNot stated in the judgment excerpt· [2018] KEELRC 1240 (KLR)

Joshua Nyagol Onyango & 4 others v Relief & Missions Logistics Limited [2018] KEELRC 1240 (KLR)

Employment and Labour Relations Court
9 July 2018
HWHellen Wasilwa
1,390 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 declined to stay costs because execution had not started, but still allowed the money to be deposited in court.

What this practically means

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Executive summary

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The Respondent/Applicant (Judgment Debtor) moved the Court by Notice of Motion dated 8/3/2018 seeking stay of, and review of, orders issued on 6/3/2018 in which the Court had marked its stay application dated 22/6/2017 as spent and ordered costs of Kshs.153,000 be released to the Claimant/Decree Holder. The Applicant contended the orders were issued in error apparent on the face of the record, in disregard of the directions of 21/2/2018 that the application be disposed of by written submissions, and prejudiced its intended appeal against the decision of 17/2/2017. The Claimants opposed, noting the costs had been taxed by consent at Kshs.153,480 and that the Court had lacked jurisdiction to stay taxed costs. The Court held the application was incompetent as it was brought under Rule 32 of the repealed Industrial Court (Procedure) Rules 2010, which were wholly replaced by the Employment and Labour Relations Court (Procedure) Rules 2016 on 5th August 2016. It further found no order capable of being stayed, since no execution process had commenced and the impugned order required the Judgment Debtor to pay the Decree Holder directly rather than releasing funds from court. Nonetheless, exercising discretion under Article 159(2)(d) of the Constitution, the Court allowed review to the extent of ordering that the costs of Kshs.153,000 also be deposited in Court, as had been done with the decretal sum, and made no order as to costs (costs in the cause).

Key legal issues

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01

Competence of an application filed under repealed rules

Holding

The application was brought under non-existent rules since the Industrial Court (Procedure) Rules 2010 had been wholly repealed by the Employment and Labour Relations Court (Procedure) Rules 2016, making the application improperly founded; the relief sought under such process would normally be refused.

Reasoning

The court found the applicants invoked Rule 32 of the Industrial Court (Procedure) Rules 2010, gazetted before the 2016 Rules. Applying Section 24 of Cap 2 on effect of repeal on subsidiary legislation, it held the 2010 Rules were wholly repealed on 5th August 2016. Approaching the Court under non-existent rules was wrong, so the application as brought was incompetent.

p. 2
02

Whether there was an order capable of being stayed

Holding

There was nothing to stay because the execution process had not been started; the order of 6/3/2018 required the Judgment Debtor to release the money to the Decree Holder, not a release from the deposited funds.

Reasoning

The court clarified that the impugned order did not direct release of the Kshs.153,000 from monies deposited in court; it required the Judgment Debtor to pay the Decree Holder directly, which would be effected through execution. Since no execution had been commenced, a stay was incapable in law.

p. 3
03

Review of the order on costs notwithstanding procedural defects

Holding

Exercising discretion under Article 159(2)(d), the court allowed review limited to ordering that the Kshs.153,000 costs also be deposited in court.

Reasoning

Although the application was improperly brought under repealed rules and the normal course would be to refuse the relief sought, the court invoked Article 159(2)(d) - that justice be administered without undue regard to procedural technicalities - and allowed review to the extent that the taxed costs be deposited in court like the decretal sum.

p. 3

Legal principles established

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  • Where an Act is repealed, subsidiary legislation issued under it remains in force only so far as consistent with the repealing Act until revoked or replaced, per Section 24 of Cap 2
  • The Industrial Court (Procedure) Rules 2010 were repealed by the Employment and Labour Relations Court (Procedure) Rules 2016 gazetted on 5th August 2016

Court orders

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  1. 1.The Application for review is allowed and the costs of Kshs.153,000/= are to be deposited in Court as was ordered in relation to the decretal sum
  2. 2.Costs in the cause

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 32(1)(b)(c)
  • Employment and Labour Relations Court (Procedure) Rules 2016general
  • Cap 2 (Interpretation and General Provisions Act)Section 24
  • Advocates (Remuneration) OrderRule 11
  • Constitution of Kenya, 2010Article 159(2)(d)
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Industrial Court (Procedure) Rules / Employment and Labour Relations Court (Procedure) Rules 2016

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, "Joshua Nyagol Onyango & 4 others v Relief & Missions Logistics Limited [2018] KEELRC 1240 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1240/eng@2018-07-09

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