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ELRCAllowedNotice of Motion dated 5th March, 2020 (appeal against ruling in Mavoko CMCC No. 523 of 2018)· [2023] KEELRC 1459 (KLR)

East Africa Portland Cement Limited v Maina (Appeal 16 of 2020) [2023] KEELRC 1459 (KLR)

Employment and Labour Relations Court
8 June 2023
MNMATHEWS N. NDUMA
1,042 words in judgment
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The bottom line

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Kenya's Employment Court paused a lower court case because an appeal on a time-limit question could end the whole suit.

What this practically means

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Executive summary

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The applicant, East Africa Portland Cement Limited, moved the Employment and Labour Relations Court by notice of motion dated 5th March, 2020 seeking a stay of proceedings in Mavoko CMCC No. 523 of 2018 (Bernard Tindi Maina v East Africa Portland Cement Limited) pending the hearing and determination of its appeal against a ruling of the lower Court delivered on 29th January, 2020, which had dismissed its application to strike out the respondent's suit as statute-barred under Section 90 of the Employment Act, 2007. The respondent's cause of action was said to have arisen on 2nd June, 2012, yet the suit was filed on 26th April, 2018, after the lower Court granted leave to file out of time. The respondent filed no replying affidavit; both parties filed written submissions. The court applied Order 42, Rule 6(1) of the Civil Procedure Rules and the principles in Global Tours and Travel Limited (Nairobi HC Winding Up Cause No. 43 of 2000), namely that stay of proceedings is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, the arguability of the intended appeal, judicial time and expedition. The court found the application brought without inordinate delay and the intended appeal arguable, since it raises a pure point of law capable of finally determining the suit. The application was allowed: proceedings in the Mavoko suit were stayed pending the appeal, with costs of the application in the cause.

Key legal issues

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01

Stay of proceedings pending appeal under Order 42, Rule 6(1) of the Civil Procedure Rules

Holding

The application was brought without inordinate delay, the intended appeal is arguable, and it is optimal utilisation of judicial time to determine the appeal first; stay granted

Reasoning

The court adopted the Global Tours and Travel Limited principles: stay of proceedings is discretionary and turns on the interest of justice. It found the application filed expeditiously, the intended appeal arguable because it raises a pure point of law on limitation under Section 90 of the Employment Act with the potential of finally determining the suit, and held that hearing the appeal first would optimally utilise judicial time.

p. 3

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a matter of judicial discretion to be exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application

Court orders

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  1. 1.The proceedings in Mavoko Civil Case No. 523 of 2018, Bernard Tindi Maina v East Africa Portland Cement Limited are stayed pending the hearing and determination of this appeal
  2. 2.The costs of the application be in the cause

Authorities

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Legislation

  • Employment ActSection 90
  • Civil Procedure RulesOrder 42, Rule 6(1)

Cases cited (1)

  • Global Tours and Travel Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
On appeal from
Chief Magistrate's Court, Mavoko
Civil Case No. 523 of 2018 - Bernard Tindi Maina v East Africa Portland Cement Limited
Jurisdiction invoked
Order 42, Rule 6(1) of the Civil Procedure Rules (stay of proceedings pending appeal)

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, "East Africa Portland Cement Limited v Maina (Appeal 16 of 2020) [2023] KEELRC 1459 (KLR)", Case Analysis (2023). Notice of Motion dated 5th March, 2020 (appeal against ruling in Mavoko CMCC No. 523 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1459/eng@2023-06-08

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