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ELRCDismissedNot stated in the judgment text

Charles Gacheche Gicheru v SBI International Holdings Ag (Kenya) [2020] KEELRC 1381 (KLR)

Employment and Labour Relations Court
13 March 2020
2,069 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to pause execution of a Kshs 1.67 million award because the employer's appeal paperwork was never properly served, so no valid appeal existed.

What this practically means

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Executive summary

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This is a ruling by Onesmus N. Makau, J of the Employment and Labour Relations Court at Nairobi on a Notice of Motion dated 27.8.2019 in which the respondent, who had lost a judgment of 9th November 2018 awarding the claimant Kshs. 1,671,709 as compensation under the Work Injury Benefits Act and damages for pain, suffering and loss of amenities, sought a stay of execution pending the hearing of the application and of an intended appeal. The respondent argued that the appeal was arguable, that execution would render it nugatory because the claimant could not refund the decreed sum, and that she was ready to furnish security; she had already deposited Kshs. 2,312,091 in court pursuant to an interim stay granted ex parte on 28.8.2019. The claimant opposed, contending the notice of appeal was incompetent for want of service under Rule 77 of the Court of Appeal Rules, that the application for typed proceedings was not served as required by Rule 82(2) so the limitation period never stopped running, that there was thus no appeal on record, and that the application was an afterthought brought after unreasonable delay. The court framed two issues: the competence of the notice of appeal and the application, and the threshold for stay. Following the Court of Appeal decision in Mradula Suresh Kantaria, it held the notice of appeal incompetent for want of service and found no evidence of service of the application for typed proceedings. Without a competent appeal on record, no stay could issue under Order 42 of the Civil Procedure Rules. The application was dismissed with costs and the interim stay of 28.8.2019 was set aside.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of Appeal and the application are incompetent.
  2. 2.Whether the application meets the threshold for granting stay pending appeal.

Key legal issues

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01

Competence of the notice of appeal and the application

Holding

The notice of appeal was incompetent for want of service within 7 days as required by Rule 77, and the application for typed proceedings was not served as required by Rule 82(2), so the limitation period did not stop running and no competent appeal existed on record.

Reasoning

The applicant did not rebut the claimant's contention of want of service. The court adopted the Court of Appeal decision in Mradula Suresh Kantaria, holding that failure to serve a notice of appeal renders it incompetent. The applicant also failed to demonstrate service of the application for typed proceedings, meaning time for lodging the appeal never stopped running. Consequently no appeal existed to support stay under Order 42.

p. 3
02

Threshold for granting stay pending appeal under Order 42 rule 6(2)

Holding

The court declined to consider the stay threshold because the application was incompetent, and dismissed it with costs while setting aside the interim stay.

Reasoning

Having found that no competent notice of appeal or appeal was on record, the court held that a stay order would not issue because its purpose is to safeguard the right of hearing of an appeal, not for its own sake. It therefore did not engage the substantial loss, delay and security requirements of Order 42 rule 6(2) and dismissed the application with costs, setting aside the interim stay of 28.8.2019.

p. 3

Legal principles established

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  • Failure to serve a notice of appeal on all persons directly affected renders the notice of appeal, and the record of appeal, incompetent
  • An appellant cannot rely on the proviso to Rule 82(1) of the Court of Appeal Rules unless the application for copies of proceedings was in writing and served on the opposite party
  • A stay of execution cannot issue where there is no appeal or competent notice of appeal on record

Court orders

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  1. 1.The application dated 27.8.2019 is dismissed with costs
  2. 2.The interim order of stay granted on 28.8.2019 is set aside

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Stay of execution of the judgment and decree pending hearing of the application

The notice of appeal was incompetent for want of service, so there was no basis for granting stay orders

p. 3

Stay of execution of the judgment and decree pending the intended appeal

No competent appeal or notice of appeal was on record to found a stay under Order 42 of the Civil Procedure Rules

p. 3

Costs

The application is dismissed with costs (costs to the claimant)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, I must return that the application is incompetent for the reasons stated above and proceed to dismiss it with costs. I also set aside the interim order stay granted on 28.8.2019.
p. 3Final orders - dismissal and setting aside of interim stay
Consequently, I return that the applicant has failed to demonstrate using a Notice of Appeal and served application for proceedings that she has an appeal on record which forms the basis for the application for stay of execution.
p. 3No appeal on record
failure to serve the notice of appeal renders a notice of appeal incompetent including the record of appeal itself.
p. 2Service of notice of appeal - mandatory requirement
An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.
p. 3Rule 82(2) - service of application for proceedings

Issues in the judgment

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minor

The judgment uses inconsistent pronouns for the parties, referring to the respondent/applicant as both 'he' and 'she' within the same passage

minor

Text alternately calls the notice of appeal under Rule 76 and Rule 77 of the Court of Appeal Rules; the quoted rule is labelled Rule 77

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, "Charles Gacheche Gicheru v SBI International Holdings Ag (Kenya) [2020] KEELRC 1381 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1381/eng@2020-03-13

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