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ELRCDismissed· [2021] KEELRC 980 (KLR)

Joseph Otieno Oruoch v Kenya Medical Practioners Pharmacists and Dentists Union & another [2021] KEELRC 980 (KLR)

Employment and Labour Relations Court
24 September 2021
CBCHRISTINE N. BAARI
1,403 words in judgment
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The bottom line

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A Kenyan employment court refused to halt or reopen a judgment where the losing party never appealed and offered no new evidence.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kisumu (Christine N. Baari, Judge) determined an application dated 23rd August, 2021 filed by the applicant/1st respondent seeking stay of the orders and decree issued on 30th July, 2021 in the underlying petition, review, variation and/or setting aside of those orders, leave to defend the suit, and costs. The application was brought under Section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33 of the ELRC Procedure Rules, 2016. The petitioner and 2nd respondent did not appear or file replies despite proof of service, so the application proceeded unopposed. The court analysed each prayer separately. On stay, it applied Order 42 Rule 6(2) of the Civil Procedure Rules as explained in Lily Yeko Ngwenye v World Vision Kenya, holding that stay pending appeal protects a party who has lodged or intends to lodge an appeal; since the application referenced no appeal, a stay would operate in perpetuity and unjustifiably bar implementation of the decree. On review, the court held that discovering the existence of a decision in a matter one did not participate in is not discovery of new and important matter under rule 33, and that the applicant in effect sought a fresh hearing, which review does not afford, following Ajit Kumar Rath v State of Orisa (Supreme Court of India). The grounds also fell short of error apparent, need for clarification, or other sufficient reason. The entire application was dismissed with no orders as to costs on 24th September, 2021.

Key legal issues

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01

Whether stay of execution could issue under Order 42 Rule 6(2) in the absence of an appeal

Holding

The prayer for stay fails because no appeal is referenced; a stay without an appeal would operate in perpetuity and unjustifiably bar implementation of the decree

Reasoning

The court applied Order 42 Rule 6(2) CPR conditions (substantial loss, no unreasonable delay, security) citing Lily Yeko Ngwenye v World Vision Kenya. It observed that stay is designed to protect a party who has lodged or intends to lodge an appeal. The application did not reference any appeal against the 30th July 2021 decree, meaning a stay would be perpetual and unjustifiable. The prayer was accordingly dismissed.

p. 2
02

Whether the applicant's non-participation in the petition constitutes a ground for review under Rule 33 of the ELRC Procedure Rules

Holding

Discovery of the existence of a decision in a matter the applicant did not participate in does not amount to discovery of new and important matter or evidence, nor any other sufficient reason for review

Reasoning

The court noted the decree recorded that despite service the 1st respondent did not respond. Review under rule 33 requires new and important matter discovered with due diligence, error apparent on the face of the record, need for clarification, or other sufficient reason. The applicant sought a fresh hearing, which is unavailable on review, following the Supreme Court of India in Ajit Kumar Rath v State of Orisa. The grounds were also insufficient under rule 33(1)(d), and the prayer was dismissed.

p. 2

Legal principles established

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  • An order of stay pending appeal under Order 42 Rule 6(2) protects a party who has lodged or intends to lodge an appeal; where no appeal is preferred, stay cannot issue as it would operate in perpetuity
  • Review cannot be used as a vehicle for a fresh hearing; it lies only for discovery of new and important matter, error apparent on the face of the record, clarification, or other sufficient reason

Court orders

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  1. 1.The application for stay and review or variation of the decree of the court issued on 30th July, 2021 filed for the 1st respondent on 23rd August, 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court Procedure RulesRules 17, 33
  • Civil Procedure RulesOrder 42, Rule 6(2)

Cases cited (2)

  • Lily Yeko Ngwenye –vs- World Vision Kenya
    [2020] eKLR
  • Ajit Kumar Rath –Versus- State of Orisa and Others
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33 of the Employment and Labour Relations Court Procedure Rules, 2016

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, "Joseph Otieno Oruoch v Kenya Medical Practioners Pharmacists and Dentists Union & another [2021] KEELRC 980 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/980/eng@2021-09-24

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