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ELRCDismissedEldoret ELRC Appeal (application dated 25th February, 2023)· [2023] KEELRC 1736 (KLR)

Patel t/a Akshar Ventures v Mabinda (Appeal E007 of 2023) [2023] KEELRC 1736 (KLR)

Employment and Labour Relations Court
13 July 2023
MOMaureen Onyango
1,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed you cannot appeal a court's refusal to fast-track your case without first getting the trial court's permission.

What this practically means

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Executive summary

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The applicant, Rajesh Patel t/a Akshar Ventures, moved the Employment and Labour Relations Court at Eldoret by application dated 25th February, 2023 seeking stay of proceedings and execution of the judgment delivered on 23rd January, 2023 in Eldoret ELRC Cause No E155 of 2021 (Michael Andiba Mabinda v Rajesh Patel t/a Akshar Ventures), and setting aside of directions issued by the Senior Principal Magistrate on 17th February, 2023 declining to certify the applicant's application urgent. The applicant claimed he was never served with the pleadings and learned of the suit only upon receiving a mention notice in November 2022, by which time the file was with the magistrate for judgment. The respondent opposed, contending the appeal was incompetent for want of leave, that the impugned order was a negative order incapable of execution, and that no appeal had been filed against the decree. The court framed two issues: whether there is an automatic right of appeal where a court declines to certify a matter urgent, and whether the stay orders sought were merited. Relying on Order 43 Rules 1 and 2 of the Civil Procedure Rules, the court held that an appeal from a refusal to certify a matter urgent does not lie as of right and leave ought first to have been obtained from the trial court. It further found no immediate threat of execution, as no notice of entry of judgment had been served and no certificate of costs had issued. The application and appeal were dismissed as prematurely filed, costs were placed in the cause, the parties were referred back to the trial court, and status quo was ordered pending further orders of the trial court.

Key legal issues

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01

Whether there is an automatic right of appeal against a refusal to certify a matter urgent

Holding

There is no automatic right of appeal; such an appeal lies only with leave of the trial court under Order 43 Rule 2 of the Civil Procedure Rules

Reasoning

Order 43 Rule 1 of the Civil Procedure Rules enumerates the orders from which appeals lie as of right, while Rule 2 requires leave for appeals from any other order. A decision declining to certify a matter urgent is not among the orders appealable as of right. The applicant, having failed to obtain leave, filed an appeal that was not sustainable and consequently premature.

p. 3
02

Whether stay of execution pending appeal should be granted

Holding

Stay was refused because the appeal was premature and there was no demonstrated urgency or immediate threat of execution

Reasoning

The applicant had not been served with notice of entry of judgment and no certificate of costs had been issued, so there was no immediate threat of execution warranting ex tempore stay orders. A decision on urgency is discretionary and the challenge to it was unsubstantiated. The application and appeal were therefore prematurely filed and were dismissed, with the parties referred back to the trial court.

p. 3

Legal principles established

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  • Appeals from orders not listed under Order 43 Rule 1 of the Civil Procedure Rules lie only with leave of the court; an appeal against a refusal to certify a matter urgent does not lie as of right
  • A party must obtain leave from the trial court before moving to the ELRC on appeal against an interlocutory discretionary decision

Court orders

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  1. 1.The application and the appeal are dismissed as prematurely filed
  2. 2.Costs of the application to be in the cause
  3. 3.Parties referred back to the trial court to pursue the applicant's application therein
  4. 4.Status quo ordered pending further orders of the trial court

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 165(7)
  • Civil Procedure Act (Cap 21)Section 1A
  • Civil Procedure Act (Cap 21)Section 1B
  • Civil Procedure Act (Cap 21)Section 63E
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Rules, 2010Order 22 rule 22
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Civil Procedure Rules, 2010Order 40 rule 2
  • Civil Procedure Rules, 2010Order 43 Rules 1 and 2
On appeal from
Magistrate's Court at Eldoret
Eldoret ELRC Cause No E155 of 2021 - Michael Andiba Mabinda v Rajesh Patel t/a Akshar Ventures
Jurisdiction invoked
Articles 40, 50(1), 159 and 165(7) of the Constitution of Kenya; sections 1A, 1B, 63E and 3A of the Civil Procedure Act (Cap 21); Order 22 rule 22, Order 51 rule 1 and Order 40 rule 2 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, "Patel t/a Akshar Ventures v Mabinda (Appeal E007 of 2023) [2023] KEELRC 1736 (KLR)", Case Analysis (2023). Eldoret ELRC Appeal (application dated 25th February, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1736/eng@2023-07-13

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