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ELRCDismissedNotice of Motion Application dated 6th December 2022 (arising from Kisumu ELRC Cause No. 012 of 2021)· [2023] KEELRC 434 (KLR)

Mweresa v County Public Service Board of Vihiga & another (Employment and Labour Relations Cause 4 of 2022) [2023] KEELRC 434 (KLR)

Employment and Labour Relations Court
16 February 2023
2,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, Dr. Eboser Mweresa, moved the Employment and Labour Relations Court at Bungoma by Notice of Motion dated 6th December 2022 seeking stay of execution of the court's ruling of 24th November 2022, which had dismissed his application to set aside a consent decree adopted from a 7th April 2022 settlement agreement between him and the respondent, Vihiga County. The applicant, who had filed a notice of appeal and had a parallel appeal pending before the Public Service Commission pursuant to an order of 20th January 2022 in Kisumu ELRC Cause No. 012 of 2021, feared the court's finding on the validity of the agreement would terminate the PSC appeal and render his intended appeal nugatory. The respondent, through the County Attorney, filed no response and asked the court to decide on the pleadings. The court framed a single issue: whether the application was merited. It found section 16 of the Employment and Labour Relations Court Act inapplicable since no review was sought, and applied Order 42 Rule 6 of the Civil Procedure Rules. While the application was made without unreasonable delay, the court found no pleading of substantial loss, the grounds addressing only the arguability of the intended appeal. Relying on Machira v East African Standard and the negative-order line of authority (Catherine Njeri Maranga, KCB v Tamarind Meadows, Kanwal Sarjit Singh Dhiman, Western College v Oranga), the court held the ruling of 24th November 2022 was a negative order incapable of execution and thus incapable of being stayed. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the ruling of 24th November 2022 could be stayed pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

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

Reasoning

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.

p. 6
02

Whether section 16 of the Employment and Labour Relations Court Act, 2011 supported the application

Holding

Section 16 was not relevant because the orders sought were for stay, not review

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 6th December 2022 is dismissed for lack of merit
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Civil Procedure RulesOrder 42 Rule 6
  • Employment Actstatutory limitation of reinstatement relief to two years (as cited by applicant)

Cases cited (6)

  • Machira t/a Machira & Co Advocates v East African Standard No. 2
    (2002) KLR 63
  • Catherine Njeri Maranga v Serah Chege & Another
    [2017] eKLR
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Ors
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah
    [2008] eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Raymond M. Omboga v Austine Pyan Maranga
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

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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, "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.