Mweresa v County Public Service Board of Vihiga & another (Employment and Labour Relations Cause 4 of 2022) [2023] KEELRC 434 (KLR)
The bottom line
#A Kenyan court refused to pause its ruling pending appeal because you cannot 'stay' a dismissal — only orders that require action can be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 24th November 2022 could be stayed pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
The application failed: no substantial loss was pleaded, and the ruling dismissing the application to set aside the consent decree was a negative order incapable of execution and thus incapable of being stayed
The court applied Order 42 Rule 6(2), finding the application was brought without unreasonable delay but that the grounds addressed only the arguability of the intended appeal rather than pleading substantial loss. Following Machira t/a Machira & Co Advocates v East African Standard and the negative-order line of authority in Catherine Njeri Maranga v Serah Chege, KCB v Tamarind Meadows and Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah, the court held that an order dismissing an application merely leaves the applicant in his prior position; there is nothing to stay. The security limb did not arise.
Whether section 16 of the Employment and Labour Relations Court Act, 2011 supported the application
Section 16 was not relevant because the orders sought were for stay, not review
The court observed that section 16 empowers the court to review its own judgments, awards, orders or decrees, but the applicant was not inviting review; he intended to appeal. The correct provision for stay pending appeal was Order 42 Rule 6 of the Civil Procedure Rules, whose twin conditions of substantial loss and security governed the application.
Legal principles established
#- A negative order, being an order dismissing an application and capable of execution only in respect of costs, is incapable of being stayed
- An applicant for stay must prove specific details and particulars of substantial loss; mere assertion is insufficient
Court orders
#- 1.The application dated 6th December 2022 is dismissed for lack of merit
- 2.No order as to costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, 2011 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mweresa v County Public Service Board of Vihiga & another (Employment and Labour Relations Cause 4 of 2022) [2023] KEELRC 434 (KLR)", Case Analysis (2023). Notice of Motion Application dated 6th December 2022 (arising from Kisumu ELRC Cause No. 012 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/434/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.