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ELRCDismissedEmployment and Labour Relations Court Cause No. 1393 of 2017· [2020] KEELRC 1162 (KLR)

Adam Miller v WS Insight Limited [2020] KEELRC 1162 (KLR)

Employment and Labour Relations Court
12 May 2020
MOMAUREEN ONYANGO
2,796 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to pause the case, finding the appeal weak, the application badly delayed, and no harm in letting the trial continue.

What this practically means

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Executive summary

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The Respondent in ELRC Cause No. 1393 of 2017 moved the court by Notice of Motion dated 7th March 2019 seeking a stay of further proceedings pending its intended appeal against the ruling of Onyango J. delivered on 26th October 2018, which dismissed its preliminary objection challenging the court's jurisdiction on the basis that the relationship between the parties was not one of employer and employee. The application, supported by an affidavit of Simon Roberts, was opposed by the Claimant through grounds of opposition and submissions, including that the notice of appeal was never served and that the application was filed with unreasonable delay. The court identified one issue: whether the application was merited. Applying the principles in Kenya Power & Lighting Co Ltd v Esther Wanjiru Wokabi and Global Tours & Travels Ltd, the court examined (i) arguability of the appeal, (ii) expeditiousness, and (iii) the interest of justice. It held the grounds of appeal attacked matters not determined by the impugned ruling, so the appeal was not arguable; the application was filed more than four months after the ruling, part of about one year of cumulative delay attributable to the respondent; and the intended appeal, even if successful, would only result in remittal, while the respondent would suffer no irreparable loss since it could raise all preliminary objection issues in an appeal after trial. The application was dismissed with costs to the Claimant on 12th May 2020, delivery being via virtual means under COVID-19 directions.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is not arguable; the grounds raised in the draft memorandum of appeal were not matters determined by the impugned ruling

Reasoning

The ruling under appeal decided only whether a preliminary objection could be raised where no defence was on record and which court should determine whether an employment relationship existed. The court found the issues were of both law and fact requiring evidence. The grounds of appeal therefore attacked matters not the subject of the ruling, so the appeal was not arguable.

p. 4
02

Whether the application was filed expeditiously

Holding

The application was filed after an inordinate delay of more than 4 months, with cumulative delay of about one year attributable to the respondent

Reasoning

The ruling was delivered on 26th October 2018 but the application was filed on 7th March 2019. The court also noted a pattern of delay: late filing of the preliminary objection, late submissions, and an unserved notice of appeal. Delay must be assessed in the context of each case.

p. 4
03

Whether it is in the interest of justice to grant the stay

Holding

No, because the intended appeal would not finally determine the suit and the applicant would suffer no irreparable loss

Reasoning

Even if the appeal succeeded, the likely order would be remittal to the ELRC for rehearing of the preliminary objection. If stay were declined, the respondent would file a defence, the suit would proceed, and the respondent would retain a right of appeal in which all preliminary objection issues could be raised. Expeditious disposal and judicial time favoured refusing the stay.

p. 4

Legal principles established

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  • The High Court/ELRC has power to stay proceedings pending appeal derived from Order 42 rule 6 of the Civil Procedure Rules and the inherent jurisdiction under section 3A of the Civil Procedure Act
  • Stay of proceedings pending appeal requires an arguable (not necessarily probable-to-succeed) appeal, expeditious filing, and sufficient cause that the stay is in the interest of justice

Court orders

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  1. 1.The application dated 7th March 2019 is dismissed
  2. 2.Costs of the application to the claimant

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1)(a); Section 12
  • Employment & Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Court of Appeal Rules, 2010Rule 77(1); Rule 82(1)
  • Civil Procedure RulesOrder 42 rule 6; Order 21 Rule 1
  • Civil Procedure ActSection 3A; Section 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (8)

  • Kenya Power and Lighting Company Limited v Esther Wanjiru Wokabi
    (2014) eKLR
  • Stanley Mungai Muchai v National Oil Corporation of Kenya
    (2012) eKLR
  • George Oraro v Kenya Television Network
    Nairobi HCCC No. 151 of 1992
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Robert Gathigana Njagi v John Mutua Manda
    [2017] eKLR
  • Michael Njai v Juan Torres & Another
    [2015] eKLR
  • UAP Provincial Insurance Company Limited v. Michael John Beckett
    Civil Appeal No. 26 of 2007
  • Joseph Wanjohi Njau v Benson Maina Kabau
    (2013) eKLR
Jurisdiction invoked
Section 12 of the Employment & Labour Relations Court Act, Rule 17 of the ELRC (Procedure) Rules, 2016, Order 42 rule 6 of the Civil Procedure Rules and section 3A 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, "Adam Miller v WS Insight Limited [2020] KEELRC 1162 (KLR)", Case Analysis (2020). Employment and Labour Relations Court Cause No. 1393 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1162/eng@2020-05-12

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