Charles Gacheche Gicheru v SBI International Holdings Ag (Kenya) [2020] KEELRC 1381 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of Appeal and the application are incompetent.
- 2.Whether the application meets the threshold for granting stay pending appeal.
Key legal issues
#Competence of the notice of appeal and the application
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.
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.
Threshold for granting stay pending appeal under Order 42 rule 6(2)
The court declined to consider the stay threshold because the application was incompetent, and dismissed it with costs while setting aside the interim stay.
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.
Legal principles established
#- 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
#- 1.The application dated 27.8.2019 is dismissed with costs
- 2.The interim order of stay granted on 28.8.2019 is set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#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
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
Costs
The application is dismissed with costs (costs to the claimant)
Quotable passages
#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.
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.
failure to serve the notice of appeal renders a notice of appeal incompetent including the record of appeal itself.
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.
Issues in the judgment
#The judgment uses inconsistent pronouns for the parties, referring to the respondent/applicant as both 'he' and 'she' within the same passage
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.