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ELRCDismissedNot stated in the judgment· [2019] KEELRC 82 (KLR)

Oscar Juma v Telkom Kenya Limited & 2 others [2019] KEELRC 82 (KLR)

Employment and Labour Relations Court
16 December 2019
HWHellen Wasilwa
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Once you've filed a Notice of Appeal in Kenya, the Court of Appeal — not the trial court — decides whether to stay the order you're appealing.

What this practically means

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Executive summary

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This was a Notice of Motion dated 15th August 2019 filed by the Respondents/Applicants in the Employment and Labour Relations Court seeking, among other things, a stay of execution of a Ruling delivered on 17th July 2019 in which the Court had directed them to deposit Kshs. 10 Million in Court as security for judgment pending the hearing and determination of the main claim. The Applicants also sought to have Kshs. 4 Million already held in Court, deposited pursuant to an order of 27th June 2018, deemed sufficient security for a conditional stay, and a stay of further proceedings pending an intended appeal against the Ruling. The application was supported by the affidavit of Nelson Mogaka, Senior Internal Counsel of the 1st Respondent. The Applicants submitted that they had satisfied the conditions under Order 42 Rule 6 of the Civil Procedure Rules, 2010, relying on Butt v Rent Restriction Tribunal, Amal Hauliers Ltd v Abdulnasir Abukar Hassan and Quest Resources Ltd v Japan Port Consultants Ltd, and contending that the deposit would drive them out of business through cash flow constraints and reputational risk, and that the Kshs. 4 Million already deposited sufficed given the Claimant's maximum possible compensation of about Kshs. 4,043,214/=. The Claimant opposed through Grounds of Opposition and submissions, arguing that substantial loss and nugatory-appeal had not been demonstrated, that there was material non-disclosure and delay, and that the Court should not sit in appeal over its own assessment of adequate security. The Court, per Wasilwa J, noted that the Applicants had already filed a Notice of Appeal against the 17th July 2019 orders, so the Court of Appeal was seized of stay issues, and held that the right forum for the application was the Court of Appeal. The application was dismissed with costs in the cause.

Key legal issues

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01

Proper forum for stay of execution pending an intended appeal

Holding

The application for stay is not merited because the Court of Appeal, before which an appeal has been filed via a Notice of Appeal, is the proper forum to determine stay pending appeal

Reasoning

The Court noted that the Applicants had already filed a Notice of Appeal against the order of 17th July 2019, meaning the Court of Appeal was seized of the matter in relation to stay issues, including whether the appeal was arguable. It therefore declined to determine the stay conditions under Order 42 Rule 6, leaving the Applicants to pursue stay before the appellate court.

p. 3

Legal principles established

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  • Where an appeal has been preferred against an interlocutory order, the right forum to seek a stay of that order pending the appeal is the Court of Appeal

Court orders

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  1. 1.The Application is found not merited and is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (3)

  • Butt Vs The Rent Restriction Tribunal
    (1982) KLR 417
  • Amal Hauliers Limited Vs Abdulnasir Abukar Hassan
    (2017) eKLR
  • Quest Resources Limited Vs Japan Port Consultants Limited
    (2015) eKLR
Jurisdiction invoked
Not expressly stated; application brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Oscar Juma v Telkom Kenya Limited & 2 others [2019] KEELRC 82 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/82/eng@2019-12-16

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