Miriam Cherogony v African Rural Agricultural Credit Association [2021] KEELRC 1365 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for stay of proceedings pending appeal
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.
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.
Competency of an affidavit sworn by an advocate on the client's internal affairs
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.
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.
Diplomatic/organizational immunity from employment claims
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.
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
#- 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
#- 1.The Notice of Motion dated 12th February 2021 seeking stay of proceedings pending appeal is dismissed
- 2.Costs of the application to the Claimant
- 3.Directions on the hearing of the suit to be given immediately after the Ruling
- Jurisdiction invoked
- Inherent discretion of the Employment and Labour Relations Court to stay proceedings pending appeal (no specific constitutional/statutory provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.