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ELRCDismissedMombasa ELRC Appeal (stay application arising from Mombasa CM-ELR Case No 110 of 2020; related Appeal No E051 of 2022)· [2023] KEELRC 963 (KLR)
Newspaper Transporters Limited (NTL Parcel Services]) v Meri (Appeal E003 of 2023) [2023] KEELRC 963 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court in Mombasa ruled that appealing a stay order cannot be used to freeze a money decree; aggrieved parties must apply to set the stay order aside instead.
What this practically means
#Executive summary
#This is a ruling of the Employment and Labour Relations Court at Mombasa (Nzei J) on the Appellant's Notice of Motion dated January 20, 2023, seeking stay of execution of a ruling of December 29, 2022 by Hon DO Mbeja in Mombasa CM-ELR Case No 110 of 2020, in which the trial court had conditionally stayed execution of a judgment of July 6, 2022 awarding the Respondent Ksh 735,275, on condition that half the decretal sum be paid to the claimant and half deposited in a joint interest-earning account. The Appellant, aggrieved by part of that ruling, had filed a secondary appeal and sought stay pending that appeal, or alternatively deposit of the entire decretal sum in a joint account. The Respondent opposed, arguing res judicata, non-compliance with the trial court's conditions, and that the exercise of the trial court's discretion was not appealable, and filed a preliminary objection on the same grounds. The court treated the objection as part of the response. Holding that a troubling trend had emerged of appellants filing secondary appeals against trial courts' stay orders and seeking stay of decrees in those appeals, the court held that Order 42 Rule 6(1) requires a party aggrieved by a stay order to apply to the appellate court to set it aside, and that a secondary appeal is not against the decree, so the decree cannot be stayed on its basis. The application was dismissed with costs.
Key legal issues
#01
Whether stay of execution pending appeal can issue where the appeal is against a stay order rather than the decree
Holding
The application was dismissed; a secondary appeal against a trial court's stay order cannot ground stay of the underlying decree
Reasoning
Order 42 Rule 6(1) permits a person aggrieved by a stay order to apply to the appellate court to set it aside. Filing separate appeals against stay orders and seeking stay of the decree in those secondary appeals deviates from the Rules, risks res judicata, and cannot succeed because such appeals are not against the decree.
p. 4
Legal principles established
#- Where a party is aggrieved by a trial court's order of stay made under Order 42 Rule 6(1), the remedy is to apply to the appellate court to set aside that order, not to file a secondary appeal and seek stay of the decree in that appeal
- Stay of execution of a lower court's decree cannot issue in a secondary appeal which is not against the decree
Court orders
#- 1.The Appellant's Notice of Motion dated January 20, 2023 is dismissed with costs
- On appeal from
- Chief Magistrate's Court, Mombasa (ELR)
- CM-ELR Case No 110 of 2020
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Newspaper Transporters Limited (NTL Parcel Services]) v Meri (Appeal E003 of 2023) [2023] KEELRC 963 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal (stay application arising from Mombasa CM-ELR Case No 110 of 2020; related Appeal No E051 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/963/eng@2023-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.