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ELRCAllowedNairobi Civil Appeal No. E172 of 2021 (stay application in ELRC suit)· [2021] KEELRC 1223 (KLR)

Patrick Wafula Kuloba v Director/Chief Executive Officer, Kenya Industrial Research & Development Institute (Cause E377 of 2020) (Employment and Labour) [2021] KEELRC 1223 (KLR)

Employment and Labour Relations Court
16 July 2021
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's ELRC stopped taxation of a bill of costs pending appeal, showing courts will pause cost proceedings that an appeal could render pointless.

What this practically means

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Executive summary

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This was a ruling by Maureen Onyango J of the Employment and Labour Relations Court at Nairobi on an application dated 29 April 2021 by the respondent in the main suit (Director/CEO of KIRDI), seeking stay of taxation of a bill of costs pending the hearing and determination of its appeal, Nairobi Civil Appeal No. E172 of 2021, against the judgment of Onyango J delivered on 22 January 2021 which had lifted the claimant's suspension, terminated the anticipated disciplinary process, ordered reinstatement, payment of withheld salary and costs. The applicant, supported by an affidavit of Prof. David K. Rotich Tuigong, argued that taxation would occasion loss of public funds that could not be recovered if the appeal succeeded, and invoked Order 42 Rule 6(2) of the Civil Procedure Rules. The claimant, through a replying affidavit of Bryan Khaemba, opposed the application as premature, arguing that the bill had not been taxed so nothing was capable of being stayed, that taxation was a special jurisdiction of the Taxing Officer, and that any costs awarded could be refunded by the claimant's law firm. The court framed a single issue: whether the applicant was entitled to a stay of taxation pending appeal. Recalling that an appeal does not operate as an automatic stay and that stay under Order 42 Rule 6 is discretionary, the court noted the applicant had not sought stay of the substantive judgment but only of taxation. Since the appeal could either add to or discharge the applicant's burden of costs, the court held it judicially sensible to stay taxation to avoid its repetition or redundancy. The court granted the stay of taxation pending determination of the appeal, with the costs of the application abiding the outcome of the appeal.

Key legal issues

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01

Stay of taxation proceedings pending appeal

Holding

The application for stay of taxation pending appeal was merited and granted, as the outcome of the appeal could render taxation redundant or require its repetition.

Reasoning

The court noted that an appeal does not operate as a stay and that the conditions in Order 42 Rule 6 (substantial loss, timely application, security) govern stay applications. Here, the applicant sought only a stay of taxation, not of the judgment itself. Because the pending appeal could either discharge the applicant from liability for costs or add to it, proceeding with taxation risked the exercise becoming redundant or having to be repeated. Balancing these considerations, the court found it judicially sensible to stay taxation until the appeal is determined, with application costs abiding the appeal's outcome.

p. 3

Legal principles established

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  • An appeal does not operate as an automatic stay; a party wishing to stay execution must apply for stay, which is discretionary subject to substantial loss, timeliness and security.
  • Where an appeal may affect liability for costs, it is judicially sensible to stay taxation to avoid duplicative or redundant proceedings.

Court orders

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  1. 1.Stay of taxation of the Bill of Costs filed by the Claimant/Decree Holder pending determination of Civil Appeal No. E172 of 2020
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
On appeal from
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Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules; Article 159(2)(d) and Article 48 of the Constitution

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, "Patrick Wafula Kuloba v Director/Chief Executive Officer, Kenya Industrial Research & Development Institute (Cause E377 of 2020)  (Employment and Labour) [2021] KEELRC 1223 (KLR)", Case Analysis (2021). Nairobi Civil Appeal No. E172 of 2021 (stay application in ELRC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1223/eng@2021-07-16

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