Akshar Logistics Limited v Ekasiba (Appeal E004 of 2024) [2024] KEELRC 943 (KLR)
The bottom line
#A Kenyan court dismissed an employer's bid to pause paying a termination award because the employer tried to seek both review and appeal of the same judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution could issue where the appeal before the court is against a ruling declining review, not against the judgment sought to be stayed
No. The judgment of 4 September 2023 is not the subject of this appeal; the appeal is against the ruling of 7 December 2023 dismissing review.
The court noted that the judgment of 4 September 2023 and the ruling of 7 December 2023 have each resulted in a separate appeal, and neither can replace the other as the foundation for a stay of the judgment. The judgment whose execution was to be stayed is already the subject of Mombasa ELRCA E103 of 2023.
Whether a party may appeal and seek review of the same judgment simultaneously
No. A party must elect one remedy; exercising review and failing, the right of appeal against the original judgment is lost.
Relying on Section 80 of the Civil Procedure Act, Order 45 Rules 1 and 2, and precedent including Serephen Nyasani Menge v Rispah Onsase and Gerald Kithu Muchanje v Catherine Muthoni Ngare, the court held that permitting both remedies would be forum shopping and an abuse of process; litigation cannot be conducted on trial and error.
Effect of material non-disclosure of a parallel appeal
Non-disclosure of the existence of Mombasa ELRCA E103 of 2023 denied the applicant proper standing to urge the application.
The applicant failed to disclose the prior appeal arising from the same judgment, whose memorandum of appeal was a replica of the present one. This non-disclosure was material and prevented the court from entertaining the stay application on its merits.
Legal principles established
#- A party cannot pursue an appeal and an application for review of the same decree or order concurrently; electing review and having it dismissed extinguishes the right to appeal the original judgment.
Court orders
#- 1.The application dated 9 February 2024 is dismissed
- 2.The appeal herein suffers the same fate and cannot stand as couched
- 3.The respondent is awarded the costs of these proceedings
- On appeal from
- Chief Magistrate's Court at Mombasa (Employment and Labour Relations)
- Mombasa CMELRC No.386 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Section 17 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Indian Spray Painters Ltd v Placid View Properties Ltd & 2 others (Environment and Land Case 344 of 2015) [2026] KEELC 3573 (KLR)[2026] KEELC 3573 (KLR)10 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Akshar Logistics Limited v Ekasiba (Appeal E004 of 2024) [2024] KEELRC 943 (KLR)", Case Analysis (2024). ELRCA E004 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/943/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.