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ELRCDismissedNotice of Motion dated 18th January 2018 (arising from the Petition dismissed on 9th November 2017)· [2018] KEELRC 1964 (KLR)

Okiya Omtatah Okoiti v Board of Directors, Kenya Airports Authority & 8 others [2018] KEELRC 1964 (KLR)

Employment and Labour Relations Court of Kenya
27 April 2018
HWHellen Wasilwa
2,565 words in judgment
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The bottom line

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A Kenyan court refused to pause enforcement of a ruling after the job appointment at the centre of the case was already declined, warning against asking two courts for the same relief.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 18th January 2018 in which the Petitioner, an applicant in a petition dismissed by the Employment and Labour Relations Court on 9th November 2017, sought certification as urgent and a temporary and pending-appeal injunction restraining the 1st Respondent (Kenya Airports Authority) from appointing, confirming or otherwise filling the vacant position of General Manager Projects and Engineering Services, or from taking advantage of or effecting the judgment of 9th November 2017, pending the hearing and determination of Civil Appeal No. 420 of 2017 in the Court of Appeal. The Applicant argued the appeal was arguable, that a prior injunction had subsisted before judgment, that the Court of Appeal's diary prevented urgent hearing of a parallel Rule 5(2)(b) application, and that public interest favoured preservation of the appeal's subject matter. The Interested Parties and Respondents opposed, contending the application was an abuse of process and forum shopping, that a dismissal is a negative order incapable of being stayed, and that the application was overtaken by events because the 4th Interested Party had by e-mail dated 10th January 2018 declined the appointment. Relying on Madhupaper International Limited v Kerr, the Applicant urged concurrent jurisdiction. Justice Hellen Wasilwa held that having already filed an appeal and a stay application in the Court of Appeal, the Applicant could not pursue identical relief in this court; and since the 4th Interested Party had declined the appointment, the application was overtaken by events and the orders of stay were not tenable. The application was dismissed, execution was allowed to proceed, and the Applicant was left at liberty to pursue the appeal in the Court of Appeal.

Key legal issues

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01

Whether stay/injunction pending appeal could issue where the underlying events had been overtaken

Holding

The application was dismissed as overtaken by events since the 4th Interested Party had declined the appointment, leaving nothing capable of being stayed.

Reasoning

The court noted that the orders sought to be stayed related to barring the 4th Respondent from being appointed as General Manager Projects and Engineering Services. Since the 4th Respondent had since declined the appointment, there was no live event to restrain. The dismissal of the petition was a negative order incapable of execution, and the Applicant retained the liberty to pursue the pending appeal in the Court of Appeal.

p. 4
02

Whether concurrent applications for stay in the trial court and the Court of Appeal were permissible

Holding

The court held that having already filed an appeal and a stay application in the Court of Appeal, the Applicant could not seek the same orders before this court.

Reasoning

The Applicant had filed Civil Appeal No. 420 of 2017 and an application under Rule 5(2)(b) of the Court of Appeal Rules seeking similar relief. The court took the view that pursuing identical relief in both forums was impermissible, aligning with the respondents' argument that the application amounted to forum shopping and an abuse of process.

p. 4

Legal principles established

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  • A stay cannot issue where the events sought to be stayed have already occurred, rendering the application overtaken by events.
  • A party who has already filed an appeal and an application for stay in the Court of Appeal should not seek the same orders in the trial court.

Court orders

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  1. 1.The application for stay dated 18th January 2018 is dismissed
  2. 2.Execution to proceed
  3. 3.The Applicant is at liberty to pursue the Appeal at the Court of Appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 22, 23, 40(6), 50(1), 159, 162(2)(b), 164(3), 165(5)(b), 226(5), 258, 259(1)
  • Employment and Labour Relations Court ActSection 20
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Madhupaper International Limited v Kerr
    (1985) KLR 840
  • Tom Owiti vs Guilderberto Cuturi
    Civil Appeal No. 91 of 2013
Jurisdiction invoked
Articles 20, 22, 23, 40(6), 50(1), 159, 162(2)(b), 164(3), 165(5)(b), 226(5), 258, 259(1) of the Constitution of Kenya, 2010; Section 20 of the Employment and Labour Relations Court Act No. 20 of 2011; Order 42 Rule 6 of the Civil Procedure Rules

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, "Okiya Omtatah Okoiti v Board of Directors, Kenya Airports Authority & 8 others [2018] KEELRC 1964 (KLR)", Case Analysis (2018). Notice of Motion dated 18th January 2018 (arising from the Petition dismissed on 9th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1964/eng@2018-04-27

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