Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2023] KEELRC 2822 (KLR)

County Assembly Service Board, Nyamira County & 3 others v Bundi & 11 others (Appeal E021 of 2023) [2023] KEELRC 2822 (KLR)

Employment and Labour Relations Court
9 November 2023
CBChristine N. Baari
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to pause a case on appeal, warning that stay applications filed without real progress on the appeal amount to delay tactics.

What this practically means

#

Executive summary

#
The Applicants moved the Employment and Labour Relations Court at Kisumu by an application dated 29th June, 2023 seeking a stay of proceedings in Nyamira Employment and Labour Relations Cause No. E002 of 2023 pending the hearing and determination of their appeal against a ruling in which the lower court held it had jurisdiction over the suit. The Applicants argued that jurisdiction is a threshold issue, that their appeal was arguable, and that a stay was needed to avoid rendering the appeal nugatory. The Respondents opposed the application through a replying affidavit sworn by Grace Masese Bundi, contending that the application was incompetent, intended to delay the suit, sub judice given a similar pending application before the lower court, and that the provisions relied on by the Applicants apply to County Public Service Boards rather than County Assembly Service Boards. They also noted the Applicants had not filed a record of appeal. Justice Christine N. Baari framed a single issue: whether the Applicants deserved stay orders. Applying Order 42 Rule 6 of the Civil Procedure Rules and the stringent test for stay of proceedings in Kenya Wildlife Service v James Mutembei, the court acknowledged the appeal had been lodged in time but noted the record of appeal had not been filed seven months later, confirming the application was meant to delay the suit. The court also found no arguable appeal demonstrated. The application was dismissed, with costs to abide the appeal.

Key legal issues

#
01

Whether the Applicants deserved a stay of proceedings in the lower court pending appeal

Holding

The application was dismissed; a stay would only delay the suit and the Applicants failed to show an arguable appeal or expeditious pursuit of the appeal

Reasoning

The court applied Order 42 Rule 6 and the high and stringent test for stay of proceedings from Kenya Wildlife Service v James Mutembei. Although the appeal was lodged timeously, the Applicants had not filed their record of appeal some seven months later, confirming the Respondents' assertion that the application was intended to delay the hearing of the suit. The court also found the Applicants had not demonstrated an arguable appeal warranting the discretionary orders sought.

p. 4

Legal principles established

#
  • Stay of proceedings is a grave judicial action with a high and stringent test, distinct from stay of execution
  • Whether to grant a stay of proceedings is a judicial discretion exercised in the interest of justice, weighing pros and cons including expeditious disposal and arguability of the appeal

Court orders

#
  1. 1.The application dated 29th June, 2023 is dismissed
  2. 2.Costs shall abide the appeal

Authorities

#

Legislation

  • Constitution of KenyaArticle 234(2)(i)
  • County Government ActSection 77
  • Public Service Commission ActSection 87
  • Civil Procedure ActSection 79B
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (3)

  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
  • Kenya Wildlife Service –vs- James Mutembei
    [2019] eKLR
On appeal from
Nyamira Employment and Labour Relations Court (Lower Court)
E002 of 2023
Jurisdiction invoked
Appellate jurisdiction over the lower court's ruling on jurisdiction; stay of proceedings under Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "County Assembly Service Board, Nyamira County & 3 others v Bundi & 11 others (Appeal E021 of 2023) [2023] KEELRC 2822 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2822/eng@2023-11-09

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