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ELRCDismissedNot stated in judgment (arising from MCELRC Case No. E799 of 2020)· [2023] KEELRC 2702 (KLR)

Gichora v Matter Misericordiae Hospital (Employment and Labour Relations Appeal E115 of 2023) [2023] KEELRC 2702 (KLR)

Employment and Labour Relations Court
26 October 2023
OKOcharo Kebira
972 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 ruled you cannot get a stay of execution against a judgment that simply dismissed your case—there is nothing to stay.

What this practically means

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Executive summary

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The appellant, Anne Wanjiru Gichora, moved the Employment and Labour Relations Court by Notice of Motion dated 5th July 2023 seeking a stay of execution of the judgment of Hon. B.M Cheloti delivered on 29th May 2023 in CMEL Cause No. E799 of 2020 at Milimani, in which her claim for unfair termination was dismissed with costs of Kshs 229,380 awarded to the respondent. She filed an intended appeal and sought stay pending the inter partes hearing of the application and pending the appeal, contending that the appeal was arguable, that it would be rendered nugatory without a stay, and that she stood to suffer substantial loss. The application was supported by her affidavit and brought, she said, without delay. The respondent filed grounds of opposition, contending there was no subject matter to preserve, that no irreparable loss was demonstrated, and that it was financially sound and would repay any costs if the appeal succeeded. No submissions were filed by the time the court retired to write the ruling. Justice Ocharo Kebira held that the judgment sought to be stayed was a negative order - a dismissal with costs - and that it is trite that negative orders cannot be stayed, applying the Court of Appeal's decision in Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Milimo, Muthomi & Co. Advocates and the earlier Western College of Arts and Applied Sciences v Oranga. Finding nothing to stay, the court dismissed the application. The ruling was delivered on 26th October 2023 via video conferencing pursuant to COVID-19 directions.

Key legal issues

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01

Whether stay of execution can issue in respect of a negative order

Holding

It cannot; a judgment merely dismissing a suit with costs is a negative order and there is nothing to stay.

Reasoning

The court adopted the settled position in Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Milimo, Muthomi & Co. Advocates and Western College of Arts and Applied Sciences v Oranga: where the court below made no positive order compelling any party to do, refrain from doing, or pay anything, an application for stay is misconceived. Only an order for costs could be executed, and the respondent asserted it was financially able to refund such costs if the appeal succeeded.

p. 2

Legal principles established

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  • Negative orders, such as a dismissal of a suit with costs, cannot be stayed; there is nothing to execute.

Court orders

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  1. 1.The Notice of Motion dated 5th July 2023 seeking stay of execution is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Milimo, Muthomi & Co. Advocates & 2 others
    [2022] KECA 491
  • Western College of Arts and Applied Sciences v Oranga & Others
    [1976-80]
  • Wilson v Church
On appeal from
Chief Magistrates Court at Milimani (ELC Cause No. E799 of 2020)
CMEL Cause No. E799 of 2020
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate courts (stay of execution 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, "Gichora v Matter Misericordiae Hospital (Employment and Labour Relations Appeal E115 of 2023) [2023] KEELRC 2702 (KLR)", Case Analysis (2023). Not stated in judgment (arising from MCELRC Case No. E799 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2702/eng@2023-10-26

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