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ELRCStruck OutMCCC Appeal (Notice of Motion dated 30th July, 2021)

Kenya Council of Employment and Migration Agencies v John Obiero Nyagarama (Deceased), Advocate on Record - Court of Appeal Civil Application No.E10 Of 2020 Nakuru, Advocate on Record-Judicial Review 1 (B) of 2019 Kericho ELRC, Advocate on Record - Petition 1 of 2015 Kericho ELRC, Naomi Nyangarama, Emily Nyagarama, Chairman Council of Governors, Lee Funeral Home Nairobi, Nyamira County Government, Nyamira County Assembly & Nyamira County Public Service Board (Appeal E079 of 2021) (Employment and Labour) [2021] KEELRC 678 (KLR)

Employment and Labour Relations Court
14 October 2021
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a union's appeal for being procedurally defective and ordered its chairman to personally bear Kshs. 100,000 in costs.

What this practically means

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Executive summary

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The appellant, acting through its chairman Evans Nyambega Akuma, filed an appeal together with a Notice of Motion dated 30th July, 2021 invoking the Constitution, the Employment Act, the Fair Administrative Actions Act and the Law Reform Act. It sought leave to enjoin as respondents on appeal all parties in MCCC No. 007 of 2021; a stay of enforcement and execution of orders in MCCC No. 1162 of 2020 on grounds of conflict of interest; recall of both trial files from the Chief Magistrate's Court, Milimani, for interpretation; leave to serve the memorandum of appeal out of time; substitution of the deceased 1st respondent by his wife, daughter and son under Order 24 Rule 4 of the Civil Procedure Rules and section 54 of the Law of Succession Act; and general orders with costs. The 1st respondent died on 18th December, 2020 during the subsistence of the trial suits. Mbaru J found the appeal fundamentally defective: the challenged ruling was not attached, the basic foundations of an appeal were not addressed, and the orders sought were of a judicial review nature. No leave is needed to add parties who were before the trial court; stay must first be sought in the trial court; substitution of a deceased party without recourse to probate and administration procedures was unprocedural and an abuse of court process, and Rule 99 of the Court of Appeal Rules could not sanitise the appeal. Leave to serve the memorandum out of time was unnecessary. The court struck out the appeal and awarded the respondents costs of Kshs. 100,000, payable by the appellant through its chairman, who had rejected the court's guidance.

Questions the Court framed

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

  1. 1.Whether leave is required to enjoin as respondents parties to the suits from which the appeal arises
  2. 2.Whether orders arising from MCCC No. 1162 of 2020 and MCCC No. 007 of 2021 should be stayed pending the appeal
  3. 3.Whether the two trial files should be recalled for interpretation
  4. 4.Whether leave should be granted to serve the memorandum of appeal out of time
  5. 5.Whether the deceased 1st respondent should be substituted by his wife, daughter and son under Order 24 Rule 4 and section 54 of the Law of Succession Act
  6. 6.What costs orders should issue

Key legal issues

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01

Mode of litigation and foundation of the appeal

Holding

The appeal was fatally defective: the impugned ruling was not attached, the basic foundations of an appeal were not addressed, and the orders sought were of a judicial review nature

Reasoning

The court noted that although the matter was filed as an appeal, the appellant sought leave orders ordinarily arising in judicial review proceedings, and the challenged ruling and orders of the trial court were not attached. Without the impugned decision the court could not determine whether the matter was properly before it as an appeal or a judicial review application. The defect could not be cured by the mode of litigation adopted.

p. 2
02

Substitution of a deceased party

Holding

Substitution of the deceased 1st respondent under Order 24 and section 54 of the Law of Succession Act cannot be granted on appeal where probate and administration procedures were never addressed; doing so is an abuse of process

Reasoning

The 1st respondent died on 18th December, 2020 during the subsistence of the trial suits, and there was no evidence that substitution was addressed in those suits. Rule 99 of the Court of Appeal Rules could not sanitise an appeal filed with the appellant well aware of the death. The proper procedures under the Law of Succession Act had not been invoked, so the mode of litigation was unprocedural.

p. 2
03

Stay of execution and recall of trial files

Holding

Stay of the magistrate's orders must be sought first in the trial court, and the impugned orders must be attached to the appeal; recall of files for interpretation should be pursued through a properly filed Record of Appeal

Reasoning

The court held that stay applications in respect of judgments, rulings, orders or decrees of the magistrate must be addressed with the trial court first, and on appeal the impugned order must be attached, which was lacking. Save for pleadings, no order was extracted. Interpretation of the orders could form a good basis for appeal if pursued with a proper Record of Appeal.

p. 3
04

Costs

Holding

The appellant's chairman rejected the court's counsel and direction, so the appeal was struck out with costs of Kshs. 100,000 to the respondents

Reasoning

Costs in the Employment and Labour Relations Court are discretionary. The court found the chairman had declined good counsel and direction at the commencement of the hearing, rendering the ruling unnecessary, and therefore exercised its discretion to award the respondents costs assessed at Kshs. 100,000 against the appellant through its chairman.

p. 3

Legal principles established

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  • No leave is required to add as appellant's respondents parties who were party to the decision appealed from
  • An application for stay of execution of a subordinate court's orders must first be made in the trial court, and the impugned order must be attached to the appeal
  • Substitution of a deceased party cannot be sought on appeal without first addressing probate and administration procedures under the Law of Succession Act
  • Award of costs in the Employment and Labour Relations Court is discretionary

Court orders

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  1. 1.The appeal is struck out
  2. 2.The appellant, through the chairman Evans Nyambega Akuma, shall meet the respondents' costs assessed at Kshs. 100,000

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate Milimani Commercial Courts Nairobi
MCCC No. 007 of 2021 (and orders in MCCC No. 1162 of 2020)
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011; appeal from subordinate court in employment and labour relations matters (magistrates appointed by the Chief Justice through Gazette Notice No. 6024)

Relief refused

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Leave to add respondents on record in MCCC No. 007 of 2021 as respondents on appeal

No leave is required to add a respondent who was a party to the decision appealed from

p. 3

Stay of enforcement and execution of orders in MCCC No. 1162 of 2020

Stay must first be sought in the trial court and the impugned order was not attached

p. 3

Recall of the two trial files for interpretation

That would properly be pursued through a properly filed Record of Appeal

p. 3

Leave to serve memorandum of appeal out of time

Unnecessary in the circumstances of this case

p. 3

Substitution of the deceased 1st respondent with his wife, daughter and son

Probate and administration procedures under the Law of Succession Act were not addressed; the mode of litigation adopted was unprocedural and an abuse of court process

p. 2

Costs

Appeal struck out with costs to the respondents, assessed at Kshs. 100,000, payable by the appellant through its chairman Evans Nyambega Akuma

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.

For the court to issue precise and concise orders, the mater herein lacking in clarity and specify; the appeal is hereby struck out save the appellant and through the chairman Evans Nyambega Akuma shall meet the respondents costs all assessed at ksh.100, 000.
p. 3Final orders - striking out and costs
To move the court at this instance seeking leave to substitute the 1 st respondent under the instant appeal is abuse of court process.
p. 2Abuse of process - substitution of deceased party
No leave is required to file an appeal to add a respondent where such a respondent was a party from the decision, order or decree being appeal from.
p. 3Leave to add respondents on appeal
Whereas the matter herein is filed as an Appeal, the basic foundations of an appeal are not addressed.
p. 2Foundations of an appeal
The Rule cannot sanitise the appeal.
p. 2Rule 99 Court of Appeal Rules - substitution

Issues in the judgment

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minor

The names of the parties are not fully stated in the judgment; the appellant and respondents are referred to only by role and, for the appellant, by its chairman

minor

The specific appeal case number is not stated in the judgment; only the trial court numbers MCCC No. 007 of 2021 and MCCC No. 1162 of 2020 are referenced

minor

The impugned ruling of the trial court was not attached to the appeal, and the judgment does not reproduce the decision appealed from

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, "Kenya Council of Employment and Migration Agencies v John Obiero Nyagarama (Deceased), Advocate on Record - Court of Appeal Civil Application No.E10 Of 2020 Nakuru, Advocate on Record-Judicial Review 1 (B) of 2019 Kericho ELRC, Advocate on Record - Petition 1 of 2015 Kericho ELRC, Naomi Nyangarama, Emily Nyagarama, Chairman Council of Governors, Lee Funeral Home Nairobi, Nyamira County Government, Nyamira County Assembly & Nyamira County Public Service Board (Appeal E079 of 2021)  (Employment and Labour) [2021] KEELRC 678 (KLR)", Case Analysis (2021). MCCC Appeal (Notice of Motion dated 30th July, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/678/eng@2021-10-14

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