Zewde v Sauti Moja Marsabit (Sued thro’ the Board Chairperson) & another (Cause E003 of 2020) [2023] KEELRC 1061 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a competent appeal was pending
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.
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.
Whether stay of execution should issue pending appeal
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.
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.
Protection of the decree-holder pending taxation
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.
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.
Legal principles established
#- 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
#- 1.Leave granted to the applicants to change advocate (granted on 1st February 2023 with consent of claimant's counsel)
- 2.Application for stay of execution dismissed with costs
- 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
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.