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ELRCDismissedCause No 1888 of 2017· [2021] KEELRC 1365 (KLR)

Miriam Cherogony v African Rural Agricultural Credit Association [2021] KEELRC 1365 (KLR)

Employment and Labour Relations Court
29 June 2021
4,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to pause an employee's case against IFAD because the organisation delayed, filed no draft appeal, and relied only on its lawyer's word.

What this practically means

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Executive summary

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The 2nd Respondent, the International Fund for Agricultural Development (IFAD), moved the court by Notice of Motion dated 12th February 2021 seeking a stay of the full hearing of the Claimant's suit pending its intended appeal to the Court of Appeal against the ruling of Radido J dismissing its Preliminary Objection raising immunity from legal process. The application, supported by an affidavit of its advocate Henry Omino, contended that the intended appeal was arguable because the learned Judge had departed from the Supreme Court's decision in Karen Njeri Kandie v Alassane Ba on immunity in employment claims, and that the appeal would be rendered nugatory if the hearing proceeded. The Claimant opposed, alleging inordinate and unexplained delay, absence of a draft memorandum of appeal, a habit of filing applications on the eve of hearings, and the incompetency of the advocate's affidavit under Order 19 Rule 3 of the Civil Procedure Rules and the Evidence Act. Adopting the three-pronged test for stay of proceedings - arguable appeal, expeditious filing with explanation for delay, and sufficiency of cause in the interest of justice - the court found that no draft memorandum of appeal had been filed, the application was not filed expeditiously, and the reasons for delay rested solely on the advocate's affidavit without any affidavit from IFAD's own officials, which rendered the explanation moot. The application was dismissed with costs to the Claimant, with directions on the hearing of the suit to issue immediately. The underlying immunity question remains for the appeal and the main suit.

Key legal issues

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01

Test for stay of proceedings pending appeal

Holding

The court applied the three-pronged test: arguable appeal, expeditious filing with explanation for delay, and sufficiency of cause in the interest of justice. The applicant failed all practical aspects.

Reasoning

The court adopted the principles in George Oduori Otieno v African Trade Insurance Agency and assessed whether the 2nd Respondent demonstrated an arguable appeal, expeditiousness and interest of justice. It found no draft memorandum of appeal was filed, the application was lodged four days before the hearing date despite a ruling five months earlier, and the reasons for delay were deponed only by counsel, leaving the court unpersuaded that the stay was justified.

p. 4
02

Competency of an affidavit sworn by an advocate on the client's internal affairs

Holding

The affidavit sworn by Henry Omino, the 2nd Respondent's advocate, on matters of the client's internal affairs was rendered moot because it was not supported by an affidavit from the client's own officials.

Reasoning

The court noted Order 19 Rule 3 of the Civil Procedure Rules confines affidavits to facts within the deponent's own knowledge, with the proviso allowing information-and-belief statements showing sources and grounds in interlocutory proceedings. The Claimant had objected that the advocate was not an employee and lacked personal perception of the facts (hearsay). The court observed the advocate swore to reasons for delay that should have come from the client's officials, casting doubt on the explanation.

p. 4
03

Diplomatic/organizational immunity from employment claims

Holding

The court did not determine the merits of the immunity question, noting the intended appeal would raise it, but found the applicant failed to demonstrate an arguable appeal on the available material.

Reasoning

The 2nd Respondent relied on Karen Njeri Kandie v Alassane Ba (Supreme Court) contending that immunity applies to employment-related claims without exception and that Radido J departed from it. The Claimant countered that employment contracts fall within private law where immunity is restricted. The court did not resolve this question, holding instead that the burden of demonstrating a prima facie arguable case was not discharged, absent a draft memorandum of appeal.

Legal principles established

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  • An applicant for stay of proceedings pending appeal must establish a prima facie arguable case, file the application expeditiously with an explanation for any delay, and demonstrate sufficient cause that the stay is in the interest of justice
  • An advocate who swears an affidavit giving reasons for a client's delay, rather than the client's own officials, renders the affidavit of doubtful probative value and weakens the application

Court orders

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  1. 1.The Notice of Motion dated 12th February 2021 seeking stay of proceedings pending appeal is dismissed
  2. 2.Costs of the application to the Claimant
  3. 3.Directions on the hearing of the suit to be given immediately after the Ruling

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 19 Rule 3(1)
  • Evidence Act, Chapter 80 Laws of KenyaSection 62
  • Evidence Act, Chapter 80 Laws of KenyaSection 63
  • Constitution of Kenya, 2010Article 50

Cases cited (15)

  • Karen Njeri Kandie v Alassane Ba & Another
    [2017] eKLR
  • Factory Guards Limited v Factory Guards Limited
    [2014] eKLR
  • Regina Waihira Mwangi v Boniface Nthenge
    [2015] eKLR
  • George Oduori Otieno v African Trade Insurance Agency & Another
    [2020] eKLR
  • Lucy Muingo Kusewa v Embassy of Sweden, Nairobi
    [2019] eKLR
  • Leland I. Selano v Intercontinental Hotel
    [2016] eKLR
  • Republic v Attorney General [Sued for and on behalf of the Ministry of Lands] & 2 Others ex parte South and Central [Thika] Investments Limited
    [2015] eKLR
  • Yussuf Abdulgani vs. Fazal Garage
    (1953) 28 LRK 17
  • Oyugi vs. Law Society of Kenya & Another
    [2005] 1 KLR 463
  • Small Enterprises Finance Co. Ltd. vs. George Gikubu Mbuthia
    Nairobi HCCC No. 3088 of 1994
  • Life Insurance Corporation of India vs. Panesar
    [1967] EA 614
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Ezekiel Mule Musembi v H. Young & Company (E.A) Limited
    [2019] eKLR
  • Embassy of Sweden, Nairobi v Lucy Muingo Kusewa & Another
    Nairobi Civil Appeal No. 345 of 2017
  • Karen Njeri Kandie v Alssane Ba & Another
    [2015] eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to stay proceedings pending appeal (no specific constitutional/statutory provision cited)

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, "Miriam Cherogony v African Rural Agricultural Credit Association [2021] KEELRC 1365 (KLR)", Case Analysis (2021). Cause No 1888 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1365/eng@2021-06-29

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