Benter Akinyi Opande v Kenya Union of Post Primary Education Teachers (KUPPET) & another [2019] KEELRC 457 (KLR)
The bottom line
#The Employment Court refused to pause a Kshs. 550,535 judgment because the losing party filed its notice of appeal late, so no valid appeal existed.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid appeal exists where the Notice of Appeal was filed out of time and without leave
The Notice of Appeal filed on 11th February 2019, more than 14 days after the judgment of 20th December 2018, was filed out of time and without leave and is therefore invalid; consequently there is no appeal on record
Rule 75 of the Court of Appeal Rules, 2010 requires a notice of appeal to be filed within 14 days of the decision. The impugned judgment was delivered on 20th December 2018 and the Notice of Appeal was filed on 11th February 2019, well outside the period and without leave. The applicant had not even applied for extension or admission of the notice out of time. The court adopted the reasoning in the Highlands Paper Mills case that where no valid notice of appeal exists, the question of stay pending appeal is moot.
Whether an application for stay of execution pending appeal can be granted in the absence of a valid appeal
No; without a valid notice of appeal there is no appeal, and the court found no reason to delve into the merits of the stay application
Once the foundational requirement of a valid notice of appeal was found wanting, the conditions for stay under Order 42 Rule 6 (substantial loss, security, promptness, arguable appeal) did not fall for determination. Citing the Highlands Paper Mills decision, the court held the question of stay pending appeal to be a moot point and declined to assess the merits of the application, dismissing it with costs to the claimant.
Legal principles established
#- A notice of appeal must be filed within 14 days of the decision appealed against; a notice filed out of time and without leave is invalid and, absent a valid notice of appeal, there is no appeal capable of supporting a stay pending appeal
Court orders
#- 1.The application for stay of execution pending appeal is dismissed with costs to the Claimant
- Jurisdiction invoked
- Sections 3A, 53 and 66 of the Civil Procedure Act; Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benter Akinyi Opande v Kenya Union of Post Primary Education Teachers (KUPPET) & another [2019] KEELRC 457 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Cause No. 918 of 2012 (Notice of Motion dated 11th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/457/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.