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ELRCOtherEmployment and Labour Relations Cause No. 35 of 2018 (Applications dated 14.06.2021 and 15.07.2021)· [2021] KEELRC 572 (KLR)

Stephen Kibet Ngeno v Independent & Electorol & Boundaries Commission [2021] KEELRC 572 (KLR)

Employment and Labour Relations Court
4 November 2021
2,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court stopped a contempt case against a state commission because its appeal was pending, pausing enforcement until the appeal is decided.

What this practically means

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Executive summary

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Two applications arose from a judgment of D.K Njagi Marete J delivered on 1st February, 2019 in Employment and Labour Relations Cause No. 35 of 2018, by which the Claimant was reinstated and awarded a decretal sum. Following alleged non-compliance, the Court on 13th April, 2021 (pursuant to ex parte orders issued on 10th March, 2021 in a judicial review application) ordered immediate compliance. The Claimant then applied on 14th June, 2021 under Section 5(1) of the Judicature Act for warrants of arrest and committal to civil jail of the Respondent's Commission Secretary/Accounting Officer and Human Resource Manager for contempt, and for personal costs. The Respondent, a constitutional commission under Article 88, filed its own application on 15th July, 2021 seeking stay of execution of the 2019 judgment/decree and of the orders of 10th March, 2021, contending its advocate could not log into the virtual court session on 10th March, 2021, that it was condemned unheard contrary to Articles 47 and 50, that its financial year had closed, and that the judgment is subject of an appeal filed in the Court of Appeal. The Claimant countered that the excuse was hearsay, that the Respondent had been indolent for two years, and that leave to appeal out of time does not operate as a stay. Both parties filed submissions and cited extensive authority on contempt, fair hearing and stay of execution. The Court held that since an appeal was pending before the Court of Appeal - a fact not denied, the Claimant admitting service of a notice of appeal dated 26/10/2020 - declining a stay would deny the Respondent its right to the appeal process and might render the appeal nugatory. It therefore stayed execution and, in essence, the entire contempt process to allow the appeal to take its course, with costs to abide the appeal.

Key legal issues

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01

Whether contempt proceedings may proceed where the underlying judgment is on appeal

Holding

The Court stayed execution and the contempt process because an appeal was pending before the Court of Appeal.

Reasoning

The Respondent did not deny the appeal; the Claimant admitted being served with a notice of appeal dated 26/10/2020. The Court reasoned that declining a stay before the appeal is determined would deny the Respondent its right to the appeal process and could render the appeal nugatory, so both execution and the contempt proceedings were stayed to let the appeal take its course.

p. 4
02

Whether contempt of court orders is justified notwithstanding a pending appeal

Holding

Argued by the Claimant that filing an appeal does not operate as a stay and contempt proceedings may still be allowed.

Reasoning

The Claimant relied on authority that an appeal does not operate as a stay and that court orders must be obeyed to safeguard the rule of law. However, the Court did not adopt this position on the facts, instead prioritising the pending appeal and staying the contempt process. The claimant's submissions on budgetary excuses and indolence were not determinative.

p. 3

Legal principles established

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  • Where an appeal against a judgment is pending before the Court of Appeal, declining a stay would deny the party its right to the appeal process and may render the appeal nugatory, justifying a stay of execution and of contempt proceedings.

Court orders

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  1. 1.Stay of the execution process and, in essence, of the entire contempt process against the Respondent to allow the appeal before the Court of Appeal to take its course
  2. 2.Costs to abide the appeal process

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 50 Rules 1 & 3; Order 10 Rule 11; Order 1 Rule 1; Order 42 Rule 6
  • Constitution of Kenya, 2010Articles 47, 50 and 88

Cases cited (10)

  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Republic v Principal Secretary Ministry of Defence Ex parte George Kariuki Waithaka
    [2019] eKLR
  • Republic v University of Nairobi & Another ex parte Nabiswa Wakenya Moses
    [2017] eKLR
  • In re Estate of Kithumbu Nyaga Elijah (Deceased)
    [2021] eKLR
  • China Road & Bridge Corporation v Samuel Mwangi Nyamu
    [2021] eKLR
  • Onyango Oloo vs. Attorney General
    [1986-1989] EA 456
  • County Government of Embu & Another v Eric Cheruiyot & 15 others
    [2017] eKLR
  • Eric Cheruiyot & 7 others v IEBC and 7 others
    Petition No. 1 of 2017
  • Shah v Mbogo
    [1974] E.A
  • Sameer Africa Limited v Aggarwal & Sons Limited
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Section 5(1) of the Judicature Act; Order 50 Rules 1 & 3, Order 10 Rule 11 and Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Stephen Kibet Ngeno v Independent & Electorol & Boundaries Commission [2021] KEELRC 572 (KLR)", Case Analysis (2021). Employment and Labour Relations Cause No. 35 of 2018 (Applications dated 14.06.2021 and 15.07.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/572/eng@2021-11-04

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