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ELRCDismissedNot stated in the judgment text provided· [2020] KEELRC 359 (KLR)

Pascalia Mwende Matheka v Silverbird Travel Plus Limited & another [2020] KEELRC 359 (KLR)

Employment and Labour Relations Court
16 October 2020
1,483 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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The Employment Court refused to release money held in a joint account, saying only the Court of Appeal could decide the appeal's fate and any changes to stay terms.

What this practically means

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Executive summary

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The decree holder, who had obtained judgment on 10.04.2019 for Kshs.720,000 plus costs and interest, applied by notice of motion under Order 51 rule 1 of the Civil Procedure Rules and sections 1A and 1B of the Civil Procedure Act for release of approximately Kshs.924,259 held in a joint interest-earning account at Guaranty Trust Bank pursuant to a consent order of 10.12.2019. Under that consent, the judgment debtor was granted stay of execution pending a proposed appeal on condition that the decretal sum be deposited, and leave to appeal out of time was consented to. The applicant argued that no appeal had been filed over seven months later, that the notice of appeal filed on 15.04.2019 had lapsed under Rule 83 of the Court of Appeal Rules as explained in Mae Properties Ltd v Joseph Kibe, that the respondent had only sought extension of time and not stay in the Court of Appeal, and that she was suffering extreme hardship compounded by the Covid-19 situation. The respondent, through Owino Opiyo Advocate, contended that the trial court was functus officio having granted the stay; that under Order 42 rule 6(1) any challenge to the stay order lies in the Court of Appeal; that proceedings had been supplied and the Covid-19 court closure caused the delay in lodging the record of appeal; that the notice of appeal subsists unless struck out; and that the secured sum would render the applicant's position no worse. The Court accepted the Mae Properties principle on lapse of notices of appeal but held that matters touching on the propriety and existence of the appeal belong to the Court of Appeal, where the respondent's extension application was pending. The Court held that it had discharged its section 34 jurisdiction when it granted the consent stay, making it functus officio. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the trial court was functus officio regarding the decretal sum held in the joint account

Holding

The Court held that it is functus officio because it had already discharged its section 34 jurisdiction by granting the consent stay of execution of 10.12.2019, and challenges to that order lie in the Court of Appeal.

Reasoning

The applicant relied on section 34 of the Civil Procedure Act to found the trial court's jurisdiction over execution matters. The Court accepted that to be the law, but reasoned that the jurisdiction was exhausted when it made the consent stay order of 10.12.2019. Under Order 42 rule 6(1), the applicant should move the Court of Appeal to vary or set aside the stay order, and the fate of the decretal sum should follow the Court of Appeal's determination of the proposed appeal.

p. 2
02

Whether the notice of appeal had lapsed so as to entitle the applicant to release of the decretal sum

Holding

The Court held that the question whether the notice of appeal (filed 15.04.2019) lapsed under Rule 83 of the Court of Appeal Rules is properly before the Court of Appeal, which may declare it withdrawn or extend time in the pending application.

Reasoning

The applicant relied on Mae Properties Ltd v Joseph Kibe for the proposition that a notice of appeal dies a natural death after 60 days. The Court accepted the principle but noted that the deeming order is made by the Court of Appeal, and the respondent had an application pending there for extension of time. The Court also took judicial notice that the Covid-19 pandemic had disrupted court operations, and considered the respondent should first ventilate those concerns at the Court of Appeal before the terms of the stay order are disturbed.

p. 2

Legal principles established

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  • Under Rule 83 of the Court of Appeal Rules, a party who fails to institute an appeal within 60 days of filing a notice of appeal is deemed to have withdrawn the notice, and that deeming takes effect the moment the appointed time lapses; the Court referred to is the Court of Appeal.
  • Under Order 42 rule 6(1) of the Civil Procedure Rules, a person aggrieved by an order of stay made by the trial court should apply to the appellate court to have such order set aside.
  • Section 34 of the Civil Procedure Act obligates the court that issued the decree to determine all matters relating to its execution, discharge and satisfaction, but that jurisdiction is discharged once stay terms are granted pending appeal, rendering the trial court functus officio in that regard.

Court orders

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  1. 1.The application filed on 23.07.2020 is dismissed.
  2. 2.Each party to bear own costs of the application.
Jurisdiction invoked
Section 34 of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Pascalia Mwende Matheka v Silverbird Travel Plus Limited & another [2020] KEELRC 359 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/359/eng@2020-10-16

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