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ELRCDismissedNot stated in the judgment (application dated 19th May 2022)· [2023] KEELRC 3115 (KLR)

Cheng'oli & 2 others v Kenya Universities Staff Union (Petition E026 of 2021) [2023] KEELRC 3115 (KLR)

Employment and Labour Relations Court of Kenya
24 November 2023
MOM. Onyango
1,823 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 refused to pause a ruling because purely declaratory orders cannot be executed, so a stay was pointless.

What this practically means

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Executive summary

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This is a ruling-type judgment of the Employment and Labour Relations Court at Eldoret (M. Onyango, J) on a notice of motion dated 19th May 2022 in which the Applicant, a political party acting through its Secretary General Charles Mukhwaya, sought a stay of execution of the judgment and decree issued by the same court on 18th March 2022 pending an intended appeal to the Court of Appeal. The application was brought under Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act. The Applicant argued that its appeal was arguable, that it would suffer substantial loss if the newly registered officials from the conducted elections were later removed in fresh proceedings, and that no prejudice would befall the Respondents. The Respondents opposed, contending that the Applicant had not prosecuted its intended appeal, that no memorandum of appeal had been filed, and that the application was a delaying tactic. The court framed a single issue: whether the Applicant had met the criteria for stay of execution pending appeal. It found that although the application was filed without unreasonable delay, the judgment sought to be stayed consisted only of declaratory and nullification orders which carry no coercive force and are not executable. Relying on Butt v Rent Restriction Tribunal, Mohammed Salim, Johana Nyokwonyo Buti and Katiba Institute, the court held there was nothing to execute, and that removal of the elected officials could only occur in fresh proceedings. The application was dismissed with costs on 24th November 2023.

Key legal issues

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01

Whether the Applicant satisfied the criteria for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed because the judgment whose execution was sought to be stayed contained only declaratory and nullification orders which are not executable; consequently no substantial loss capable of being averted by stay was demonstrated.

Reasoning

The court restated the three conditions under Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. Although it accepted that the application was filed without undue delay, the court found that the 18th March 2022 judgment was declaratory only, so there was nothing to execute. Enforcement against the newly registered officials could only occur in fresh proceedings, meaning a stay would serve no purpose.

p. 4
02

Whether the application was made without unreasonable delay

Holding

Yes — the judgment was delivered on 18th March 2022 and the application was filed about two months later, which the court held was filed on time without undue delay.

Reasoning

The court compared the date of the judgment (18th March 2022) with the filing of the application dated 19th May 2022 and concluded that a two-month interval did not constitute unreasonable delay for purposes of Order 42 Rule 6(2). However, this finding alone did not save the application, as the other considerations militated against a stay.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and must give such security as the court orders for due performance of the decree.
  • The power to grant stay of execution pending appeal is discretionary and must be exercised judicially so as not to prevent an appeal or render it nugatory.
  • A declaratory judgment merely proclaims the existence of a legal relationship, has no coercive force, and is not enforceable by execution.

Court orders

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  1. 1.The application dated 19th May 2022 is dismissed
  2. 2.The Applicant is to pay the costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSection 3A
  • Appellate Jurisdiction ActSection 83 (as invoked by the Respondents)

Cases cited (7)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Mohammed Salim t/a Choice Butchery v Nasserpuria Memon Jamat
    (2013) eKLR
  • Portreitz Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1991
  • Johana Nyokwonyo Buti v Walter Rasugu Omariba & 2 Others
    (2011) eKLR
  • Katiba Institute v President of Republic of Kenya & 2 Others; Judicial Service Commission & 3 others (Interested Parties)
    [2020] eKLR
  • Chief RA Okoya case
  • Okiya Omtata case
Jurisdiction invoked
Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act

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, "Cheng'oli & 2 others v Kenya Universities Staff Union (Petition E026 of 2021) [2023] KEELRC 3115 (KLR)", Case Analysis (2023). Not stated in the judgment (application dated 19th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3115/eng@2023-11-24

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