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ELRCDismissedNot stated in the judgment (appeal transferred from High Court Civil Appeal No. E 308 of 2023; originating from Milimani CMEL No. 1423 of 2019)· [2024] KEELRC 189 (KLR)

University of Nairobi v Kisiangani & another (Employment and Labour Relations Appeal 184 of 2023) [2024] KEELRC 189 (KLR)

Employment and Labour Relations Court

9 February 2024

OKOCHARO KEBIRA

1,874 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Kenya's Employment Court dismissed an application to extend time and stay execution because the appeal was already validly on file and a similar stay application was still pending.

What this practically means

Executive summary

The Applicant, the judgment debtor in Nairobi Commercial Court Case CMEL No. 1423 of 2019, where judgment was delivered on 6th March 2023 by Magistrate Rawlings Liluma, moved the Employment and Labour Relations Court by Notice of Motion dated 31st October 2023 under Order 22 Rule 22 and Order 51(1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. It sought setting aside of a proclamation of attachment of its motor vehicles and office equipment valued at KShs. 3,545,000, and enlargement of time to file an appeal out of time. The Applicant's earlier memorandum of appeal had been filed in the High Court (Civil Appeal No. E 308 of 2023), and Justice Mulwa on 19th September 2023 transferred it to the ELRC while vacating interlocutory stay orders and granting 30 days' status quo. The 1st Respondent opposed, contending that a proclamation is a precautionary inventory, not a sale, and that no arguable appeal or substantial loss had been demonstrated. Ocharo Kebira, J, framed two issues. On extension of time, the court held the appeal had been validly filed and merely transferred, and remained alive; the prayer was misplaced and was declined. On stay, the court noted the application contained no prayer for stay pending appeal, and that an earlier application of 18th April 2023 for stay pending appeal was still pending, rendering the instant application an abuse of process. Both prayers were declined and the application was dismissed with costs.

Key legal issues

Enlargement of time to file appeal out of time

Holding

Declined; the appeal was timely filed (albeit in the wrong forum) and survived transfer to the ELRC, so there was nothing to enlarge time for.

Reasoning

The memorandum of appeal was filed in the High Court as Civil Appeal No. E 308 of 2023. Justice Mulwa transferred it to the ELRC on 19th September 2023 without rendering it extinct. The Applicant never argued the appeal was out of time or had ceased to exist, so the court could not fathom the basis for extension of time and found the prayer misplaced.

p. 4

Stay of execution of the trial court's decree

Holding

Declined; the application contained no prayer for stay pending appeal and duplicated a pending application of 18th April 2023, amounting to an abuse of process.

Reasoning

The court observed that all stay prayers in the application related only to stay pending hearing and determination of the application, not the appeal. Submissions on stay pending appeal were therefore irrelevant. Since the 18th April 2023 application for stay pending appeal remained alive, the fresh application was abusive and the stay prayers were declined.

p. 4

Legal principles established

A transfer order does not extinguish an appeal or interlocutory application filed in the wrong forum; both remain alive in the transferee court.
Filing a fresh application seeking relief already sought in a pending application constitutes an abuse of court process.

Court orders

1.The prayer for enlargement of time to file an appeal out of time is declined as misplaced and unmerited.
2.The prayers in relation to stay of execution are declined.
3.The Applicant's application dated 31st October 2023 is dismissed with costs.

Authorities

Legislation

Civil Procedure Rules 2010Order 22 Rule 22
Civil Procedure Rules 2010Order 51(1)
Civil Procedure ActSections 1A, 1B and 3A
Civil Procedure Rules 2010Order 21 Rule 1
Constitution of KenyaArticle 159(2)(d)
Constitution of KenyaArticle 48

On appeal from: High Court of Kenya (transferred to ELRC); original decree from Nairobi Commercial Court Case CMEL No. 1423 of 2019 (Principal Magistrate, Rawlings Liluma); Civil Appeal No. E 308 of 2023
Jurisdiction invoked: Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 22 and Order 51(1) of the Civil Procedure Rules 2010; appeal transferred from the High Court to the ELRC

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "University of Nairobi v Kisiangani & another (Employment and Labour Relations Appeal 184 of 2023) [2024] KEELRC 189 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal transferred from High Court Civil Appeal No. E 308 of 2023; originating from Milimani CMEL No. 1423 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/189/eng@2024-02-09

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