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ELRCDismissedCause pending at ELRC Mombasa (application dated May 26, 2022 within suit involving CBA negotiations dispute)· [2023] KEELRC 1265 (KLR)

Amalgamated Union of Kenya Metal Workers v Mohamed t/a Rizwan Metal Craft (Cause E095 of 2021) [2023] KEELRC 1265 (KLR)

Employment and Labour Relations Court
18 May 2023
MMM. Mbarũ
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa employment court refused to pause a union's case against a metal business, ruling that appeals over a name error don't justify stopping proceedings.

What this practically means

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Executive summary

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The respondent, Raiz Ul Haq Mohamed t/a Rizwan Metal Craft, applied by notice of motion dated May 26, 2022 for a stay of proceedings in a claim by the Amalgamated Union of Kenya Metal Workers concerning failure to agree on the gratuity rate in CBA negotiations. The application was prompted by the court's ruling of February 25, 2022, which allowed the claimant to amend the Memorandum of Claim to name the proper respondent as Riazullhaq Ali Mohamed t/a Rizwan Metal Craft, resolving confusion over the respondent's name. The respondent filed an appeal, E099 of 2022, to the Court of Appeal and argued that stay was needed to prevent the appeal being rendered nugatory. The claimant opposed, contending that stay of proceedings requires exceptional circumstances, that the application did not meet Order 42 rule 6 principles, and that the subject of the appeal had become moot following the amendment of pleadings. The court applied the stringent test for stay of proceedings, relying on Kenya Wildlife Service v James Mutembei (2019) eKLR and Global Tours & Travels Limited, stressing that stay of proceedings is a grave order that impedes access to justice and must not be confused with stay of execution. The court held that the issue raised in the appeal, the correct name of the respondent, had been addressed through amendment, that the respondent would still be heard on the merits, and that a stay would not aid justice or the objectives of Section 3 of the Employment and Labour Relations Court Act, 2011. The application dated May 26, 2022 was dismissed with costs to the claimant, with hearing directions to follow.

Key legal issues

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01

Test for stay of proceedings pending appeal

Holding

The applicant must satisfy the stringent test for stay of proceedings, including expeditious application, arguability of the appeal and weighing of pros and cons; the court declined to stay because the subject of the appeal had been overtaken by amendment of pleadings

Reasoning

The court distinguished stay of proceedings from stay of execution, noting that stay of proceedings impedes access to justice and the right to be heard without delay. Applying the Global Tours & Travels factors and the Kenya Wildlife Service test, it found that the appeal concerned the correct name of the respondent, an issue resolved by allowing amendments, so no prejudice would arise if the claim proceeded to a hearing on the merits.

p. 2
02

Effect of amendment of pleadings on an application for stay

Holding

Since the ruling allowed the claimant to amend the pleadings to reflect the proper respondent, the subject of the intended appeal was rendered moot and stay would not aid justice

Reasoning

The ruling of February 25, 2022 permitted amendment of the Memorandum of Claim to name Riazullhaq Ali Mohamed t/a Rizwan Metal Craft as respondent. The applicant himself swore affidavits giving his full names as sole proprietor. Once amendments are complied with, the respondent can file a defence and the claim be determined on its merits, protecting both parties, so the appeal issue is muted.

p. 2

Legal principles established

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  • Stay of proceedings differs from stay of execution and is a grave order granted only on stringent grounds

Court orders

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  1. 1.Application dated May 26, 2022 dismissed
  2. 2.Costs to the claimant
  3. 3.Upon delivery of the ruling, the court will give hearing directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 42 rule 6
  • Employment and Labour Relations Court ActSection 3

Cases cited (2)

  • Kenya Wildlife Service v James Mutembei
    (2019) eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding up Cause No. 43 of 2000
On appeal from
Court of Appeal
E099 of 2022
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 3; Civil Procedure Rules, Order 42 rule 6

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, "Amalgamated Union of Kenya Metal Workers v Mohamed t/a Rizwan Metal Craft (Cause E095 of 2021) [2023] KEELRC 1265 (KLR)", Case Analysis (2023). Cause pending at ELRC Mombasa (application dated May 26, 2022 within suit involving CBA negotiations dispute). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1265/eng@2023-05-18

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