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ELRCDismissedNot stated in extract· [2023] KEELRC 1061 (KLR)

Zewde v Sauti Moja Marsabit (Sued thro’ the Board Chairperson) & another (Cause E003 of 2020) [2023] KEELRC 1061 (KLR)

Employment and Labour Relations Court
27 April 2023
1,531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nyeri refused to pause a Kshs.789,250 unfair termination award because the employer never filed a Notice of Appeal in time.

What this practically means

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Executive summary

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Marete J had on 28th September 2022 awarded the claimant Kshs.789,250.00 as damages for unfair termination of employment. On 1st November 2022 the respondents, having appointed a new advocate, filed a Notice of Motion seeking leave to change advocate, stay of execution of the judgment pending an intended appeal at the Court of Appeal at Nyeri, and costs to abide the appeal. The claimant opposed, pointing out that no Notice of Appeal had been filed within 14 days as required under Rule 77 of the Court of Appeal Rules, 2022, and that the applicants had instead filed an extension-of-time application at the Court of Appeal (Civil Application No. 90 of 2022) which was yet to be determined. On 1st February 2023 the court granted leave to change advocates by consent. On the stay, Makau J framed two issues: whether a competent appeal was pending, and whether stay should issue. He held that an appeal for stay purposes requires a filed appeal or Notice of Appeal under Rule 77, and since none was filed there was no pending appeal; granting stay would amount to abuse of judicial discretion. The applicants were directed to the Court of Appeal under Rule 5(2)(b) where the twin principles of an arguable appeal and nugatory-ness apply. The application for stay was dismissed with costs, though the court noted that since costs were untaxed, execution could not proceed without leave under section 94 of the Civil Procedure Act. Dated, signed and delivered at Nyeri on 27th April 2023.

Key legal issues

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01

Whether a competent appeal was pending

Holding

No competent appeal was pending because no Notice of Appeal was filed within 14 days of the judgment; the applicants admitted they had filed an extension-of-time application in the Court of Appeal which was yet to be determined.

Reasoning

The court found it undisputed that since judgment on 28th September 2022 no Notice of Appeal was filed. An appeal for stay purposes requires a filed appeal or Notice of Appeal under Rule 77 of the Court of Appeal Rules. The pending extension application before the Court of Appeal did not amount to a competent appeal.

p. 3
02

Whether stay of execution should issue pending appeal

Holding

Stay refused because without a validly filed Notice of Appeal there is no pending appeal; the proper forum is the Court of Appeal under Rule 5(2)(b) where the twin principles of arguable appeal and nugatory-ness apply.

Reasoning

Rule 42(1) of the Civil Procedure Rules contemplates stay only where an appeal has been preferred and sufficient cause shown. Granting stay absent a competent appeal would abuse judicial discretion. The applicants were advised to seek stay before the Court of Appeal under Rule 5(2)(b), satisfying the twin principles.

p. 3
03

Protection of the decree-holder pending taxation

Holding

The court noted that since costs have not been taxed, execution cannot proceed without leave of the court under section 94 of the Civil Procedure Act.

Reasoning

Despite dismissing the stay application, the court observed as a mitigating point that costs had not yet been taxed by the taxing officer, so by dint of section 94 of the Civil Procedure Act, execution cannot proceed without the leave of the court. This preserves some protection for the applicants pending the extension application in the Court of Appeal.

p. 3

Legal principles established

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  • An appeal for purposes of stay pending appeal before the Court of Appeal suffices only if the applicant has filed the appeal or a Notice of Appeal under Rule 77 of the Court of Appeal Rules.
  • Where the time to pursue an appeal has lapsed without a Notice of Appeal, the court has no basis to grant stay of execution.

Court orders

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  1. 1.Leave granted to the applicants to change advocate (granted on 1st February 2023 with consent of claimant's counsel)
  2. 2.Application for stay of execution dismissed with costs
  3. 3.Observation that by dint of section 94 of the Civil Procedure Act, execution cannot proceed without leave of the court since costs have not yet been taxed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure RulesRule 42(1)
  • Court of Appeal Rules, 2022Rule 77(1) and (2)
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSection 94
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Kenya Shell Ltd v Benjamin Karuga Kiburi & another
    [1986] eKLR
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another
    [2006] eKLR
  • Bhatt v Rent Restriction Tribunal
    [1979] eKLR
  • Vishal Stoves Suppliers Ltd v RSR Stores 2006 Ltd
    [2020] eKLR
  • Jackson Kivilu v Alba Petroleum Ltd
    [2016] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010

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, "Zewde v Sauti Moja Marsabit (Sued thro’ the Board Chairperson) & another (Cause E003 of 2020) [2023] KEELRC 1061 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1061/eng@2023-04-27

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