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ELRCAllowedPetition No. 85 of 2019; Notice of Motion dated 11th December 2019· [2020] KEELRC 1097 (KLR)

George Oduori Otieno v African Trade Insurance Agency & another [2020] KEELRC 1097 (KLR)

Employment and Labour Relations Court
15 May 2020
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court paused an employment case against the African Development Bank pending appeal, confirming stay of proceedings follows interest-of-justice principles, not Order 42.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) on a notice of motion dated 11th December 2019 by the African Development Bank, the 1st respondent in Petition No. 85 of 2019, seeking stay of proceedings pending an intended appeal to the Court of Appeal against the court's ruling of 25th October 2019 dismissing its preliminary objection on diplomatic immunity. The applicant argued that its immunity under the Privileges and Immunities Act had not been waived, that the petition disguised an employment claim as a constitutional petition, and that the appeal - raising the proper interpretation of the Supreme Court's decision in Karen Kandie - was arguable and would be rendered nugatory if proceedings continued. The petitioner opposed, arguing the Order 42 Rule 6 thresholds of substantial loss, delay and security were unmet, and that stay of proceedings cannot lie against a negative order. The court held that Order 42 governs stay of execution, not stay of proceedings, and adopted the interest-of-justice test from Kenya Power & Lighting Co Ltd v Esther Wanjiru Wokabi and Global Tours & Travels Ltd. Finding a serious arguable jurisdictional issue on diplomatic immunity, a matter of great importance to organisations operating under diplomatic immunity in Kenya, satisfactory explanation for delay, and no prejudice to the petitioner whose contract had ended, the court allowed the application, staying further proceedings pending the appeal, with costs of the application to abide the appeal. The judgment was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the threshold for stay of proceedings pending appeal was met

Holding

The court found it in the interest of justice to stay proceedings, there being a serious arguable jurisdictional issue on diplomatic immunity in the intended appeal, satisfactory explanation for delay, and the matter transcending the parties.

Reasoning

The court applied the principles in Kenya Power & Lighting Co Ltd v Esther Wanjiru Wokabi and Global Tours & Travels Ltd: weighing the pros and cons of granting stay, including expeditious disposal, arguability of the intended appeal and judicial time. It found a serious issue on the interpretation of Karen Kandie and its effect on jurisdiction over diplomatic immunity, held the matter of great importance to all organisations operating under diplomatic immunity in Kenya, found no inordinate delay, and balanced the parties' interests in favour of the applicant.

p. 4
02

Whether Order 42 Rule 6 (substantial loss, delay, security) applies to stay of proceedings

Holding

Order 42 addresses stay of execution; the petitioner's reliance on it was misplaced where there are no orders to stay or execute.

Reasoning

The court read Order 42 as a whole and held it governs stay of execution pending appeal, not stay of proceedings in a matter where nothing has been decreed. The petitioner's submissions on substantial loss and security for costs were therefore irrelevant, and the correct test is the interest-of-justice test from the Wokabi and Global Tours line of authority.

p. 3
03

Whether there was inordinate delay in filing the application

Holding

There was no inordinate delay; the applicant was waiting for typed proceedings and no steps had been taken to set the petition down for hearing.

Reasoning

The applicant explained it awaited certified proceedings to lodge a wholistic appeal. The court relied on Joseph Njau v Benson Maina Kabau (2013) eKLR for the proposition that delay is assessed contextually rather than by mere lapse of time, and noted no threat of execution existed and the petitioner was pursuing its own application dated 11th June 2019.

p. 4

Legal principles established

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  • Order 42 of the Civil Procedure Rules provides for stay of execution pending appeal and not stay of proceedings where there are no orders to be executed
  • The principles for stay of proceedings are: a prima facie arguable intended appeal, expeditious filing, and sufficient cause that it is in the interest of justice to grant the orders
  • Delay in filing an application for stay should be assessed in the context of each case, not solely on the length of time taken

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal against the ruling in Petition No. 85 of 2019 delivered on 25th October 2019, stay of further proceedings granted
  2. 2.The costs of the application shall abide the appeal

Authorities

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Legislation

  • Privileges and Immunities ActChapter 179 of the Laws of Kenya
  • Civil Procedure RulesOrder 42 Rule 6; Order 42 Rule 4; Order 21 Rule 1
  • Constitution of KenyaArticle 1 Clause 6; Article 159(2)(d); Article 48
  • Civil Procedure ActSection 1B
  • Vienna ConventionArticle 27

Cases cited (4)

  • Karen Njeri Kandie v Alassane Ba & Shelter Afrique
    [2017] eKLR
  • Kenya Power and Lighting Company Limited v Esther Wanjiru Wokabi
    (2014) eKLR
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Joseph Njau v Benson Maina Kabau
    (2013) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to stay its own proceedings pending appeal (parties addressed Order 42 of the Civil Procedure Rules, which the court found inapplicable to stay of proceedings)

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, "George Oduori Otieno v African Trade Insurance Agency & another [2020] KEELRC 1097 (KLR)", Case Analysis (2020). Petition No. 85 of 2019; Notice of Motion dated 11th December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1097/eng@2020-05-15

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