Mtimaukanena v Bharti Airtel International Ltd (Cause E264 of 2021) [2023] KEELRC 4 (KLR)
The bottom line
#A Nairobi employment court confirmed you can appeal its rulings to the Court of Appeal without asking permission, and should seek any stay from the appeal court itself.
What this practically means
#Executive summary
#Key legal issues
#Whether leave of the ELRC is required to appeal to the Court of Appeal
No; appeal is as of right under section 17(1) of the ELRC Act, and the earlier directions requiring leave were issued in error
Section 17(1) of the Employment and Labour Relations Court Act, 2011 provides that appeals from the court lie to the Court of Appeal in accordance with Article 164(3) of the Constitution. Since the right of appeal is statutorily guaranteed without leave, the court's directions of 20th September 2022 directing the applicant to seek leave were issued in error and the court lacks jurisdiction to grant leave.
Whether the trial court should entertain stay of proceedings pending appeal
Disallowed; the appellate court is the more appropriate forum
Although counsel occasionally lodge such applications before the trial court, the court held that the appropriate forum is the court before which the intended appeal will be prosecuted, because the appeal court has a better panoramic view of the appeal than the trial court.
Legal principles established
#- Appeals from the ELRC lie to the Court of Appeal as of right and no leave of the trial court is required
- Jurisdiction must exist at filing; a suit filed in a court without jurisdiction is a nullity
- A court without jurisdiction must down its tools
Court orders
#- 1.The application for leave to appeal is disallowed for want of jurisdiction
- 2.The application for stay of proceedings pending the hearing and determination of the appeal is disallowed
- Jurisdiction invoked
- Article 164(3) of the Constitution; sections 12 and 17 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mtimaukanena v Bharti Airtel International Ltd (Cause E264 of 2021) [2023] KEELRC 4 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/4/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.