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ELRCDismissedNot stated in the judgment (arising from Milimani CM ELRC No. 362 of 2019)· [2021] KEELRC 2411 (KLR)

Josephat Muoki Kiluta v James Murisho t/AaLaibon Hotel [2021] KEELRC 2411 (KLR)

Employment and Labour Relations Court
20 December 2021
MMM. Mbaru
1,603 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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A Kenyan court refused to pause an employment case because the appellant failed to attach the very ruling it was appealing, and appeals rarely stop trials.

What this practically means

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Executive summary

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The appellant filed an application dated 2nd March 2021 in an appeal before the Employment and Labour Relations Court at Nairobi, seeking stay of execution and of further proceedings in Milimani CM ELRC No. 362 of 2019 pending appeal against a ruling delivered on 5th February 2021 by Hon. D.W. Mburu. The trial court had allowed the respondent's application dated 6th August 2020 to re-open his case and file a witness statement despite the respondent having earlier indicated he would call no witnesses, after the appellant had closed his case and filed submissions. The appellant argued the order was prejudicial, applied discretion on unknown principles, and cited authority that stay of proceedings should be granted sparingly. The respondent countered that no prejudice would arise as the appellant could cross-examine, and that stay of proceedings interrupts a party's right to conduct litigation and should issue only in the rarest of cases. The court found that the impugned ruling was never attached despite a direction to file it in a supplementary affidavit, denying the court the benefit of the decision challenged; the omission was fatal. It held that the trial court's orders were consistent with Rule 14 of the ELRC (Procedure) Rules, 2016 permitting amendment and exchange of witness statements before judgment, and that since no judgment had issued each party retained a fair opportunity to urge its case. The court declined the stay, directed that the trial hearing proceed as scheduled, but granted the appellant time to cross-examine the respondent's witnesses and to recall his witnesses, and ordered each party to bear own costs. The application was effectively dismissed.

Key legal issues

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01

Whether stay of proceedings pending appeal should issue where the impugned ruling is not placed before the court

Holding

Stay was refused because the appellant failed to attach the ruling of 5th February 2021 despite being directed to file it, so the court could not verify the appellant's one-sided account

Reasoning

The court noted the ruling was not attached to the application or supporting affidavit, and a supplementary affidavit directed on 18th March 2021 was never filed. Without the impugned ruling or the record of appeal, the background could not be verified, being only the appellant's own averments. Such omission was fatal to the application.

p. 2
02

Whether the trial court's order re-opening the respondent's case was so prejudicial as to warrant a stay

Holding

The order to re-open the case fell within Rule 14 of the ELRC (Procedure) Rules, 2016, and no judgment had issued, so the appellant suffers no irreversible prejudice if afforded cross-examination and recall rights

Reasoning

The court held that allowing a party to file and exchange witness statements before judgment is within the trial court's powers under the ELRC Procedure Rules. Since judgment had not issued, each party retains a fair opportunity to urge its case on the merits, and prejudice could be cured by allowing the appellant to cross-examine and recall witnesses.

p. 3

Legal principles established

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  • An application for stay of proceedings interrupts a party's right to conduct its litigation and should be allowed only in the rarest of cases
  • A party may, with leave, be allowed to amend pleadings and file and exchange witness statements before judgment is issued under Rule 14 of the ELRC (Procedure) Rules, 2016
  • Failure to avail the decision challenged on appeal is fatal to an application founded on it

Court orders

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  1. 1.The hearing before the trial court shall proceed as directed on 5th February 2021
  2. 2.The appellant shall be allowed sufficient time and opportunity to cross-examine the respondent and its witnesses
  3. 3.The appellant may recall the appellant's witnesses to respond to any matter newly introduced by the respondent
  4. 4.Each party shall bear own costs
On appeal from
Milimani Chief Magistrate's Court (ELRC)
CM ELRC No. 362 of 2019
Jurisdiction invoked
Appellate/interlocutory jurisdiction of the ELRC over appeals from the subordinate court, with stay of proceedings sought under Order 42 Rule 6 of the Civil Procedure Rules and the court's inherent jurisdiction

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, "Josephat Muoki Kiluta v James Murisho t/AaLaibon Hotel [2021] KEELRC 2411 (KLR)", Case Analysis (2021). Not stated in the judgment (arising from Milimani CM ELRC No. 362 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2411/eng@2021-12-20

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