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ELRCDismissedCause No 191 of 2018· [2024] KEELRC 1253 (KLR)

Alubisia v Board of Management Fr Diaz Girls Secondary School (Cause 191 of 2018) [2024] KEELRC 1253 (KLR)

Employment and Labour Relations Court
8 May 2024
MOMAUREEN ONYANGO
2,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause a 2018 case, ruling a school that never filed its defence could not use an appeal to delay justice.

What this practically means

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Executive summary

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The Respondent, Board of Management Fr. Diaz Girls Secondary School, moved the court by notice of motion dated 5th December 2023 seeking a stay of proceedings, including the filing of submissions and the writing of judgment, pending the hearing and determination of its appeal, Eldoret Civil Appeal No. E090 of 2023, against a ruling of 17th October 2023 that declined to extend time to file a response to the Claim and to refer the matter to mediation. The application was supported by the affidavit of Fr. Paul K. Chesir and opposed by the Claimant, Tom Shitsamo Alubisia, who argued that the Respondent was indolent, never filed a defence despite participating in the hearing through counsel, and had not demonstrated an arguable appeal or any prejudice. The court framed a single substantive issue: whether there was a basis to exercise its discretion to stay the proceedings. Applying the principles in Re Global Tours & Travel Ltd and Shah v Mbogo, and citing Kenya Wildlife Service v James Mutembei on the stringent test for stays of proceedings, the court noted the Respondent's counsel entered appearance over three years after the suit was filed on 15th May 2018, that no defence was ever filed despite a 30-day compliance direction, and that no draft response was annexed to the application. The court held that the Respondent was hiding its indolence behind the appeal, and that granting a stay would only delay a matter pending since 2018, contrary to the overriding objective under Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The application was dismissed with costs on 8th May 2024.

Key legal issues

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01

Whether stay of proceedings pending appeal should be granted

Holding

The application was dismissed; the Respondent, having never filed a defence despite opportunities and producing no draft response, failed to demonstrate an arguable appeal or that stay would serve the interest of justice

Reasoning

The court applied the Re Global Tours & Travel Ltd criteria, weighing expeditious disposal, prima facie merits, judicial time and expedition. The Respondent's counsel participated in the hearing, no defence was ever filed, and no draft response was annexed. Article 159(2) and Sections 1A and 1B of the Civil Procedure Act favour just, expeditious resolution. Stay would only reward indolence and delay a 2018 suit.

p. 5
02

Costs of the application

Holding

Costs were awarded to the Claimant, following the dismissal of the application

Reasoning

Having found the application without merit, the court exercised its ordinary discretion on costs in favour of the successful Claimant, dismissing the application with costs.

p. 5

Legal principles established

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  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation, and the test for granting it is high and stringent
  • A party seeking stay of proceedings must show, among other things, that it has a defence to the suit and an arguable appeal

Court orders

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  1. 1.The application dated 5th December 2023 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(a)(b)(c) and (d)
  • Civil Procedure Act, Cap 21Sections 1A and 1B
  • Employment and Labour Relations Court ActPrincipal objective
  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Global Tours and Travels Limited Nairobi HCC Winding up cause No. 43 of 2000
  • Gichuhi Macharia & Another vs. Kiai Mbaki & 2 others (2016) eKLR
    (2016) eKLR
  • Kenya Power and Lighting Co. Ltd vs. Esther Wanjiru Wokabi (2014) eKLR
    (2014) eKLR
  • Port Florence Community Health care vs. Crown Health Care Limited (2022) eKLR
    (2022) eKLR
  • William Odhiambo Ramogi & 3 others vs. Attorney General & 6 others: Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR
    (2020) eKLR
  • Shah -vs- Mbogo & Another (1967) EA 1116
    (1967) EA 1116
  • Re Global Tours & Travel Ltd HCWC No.43 of 2000
  • Kenya Wildlife Service –vs- James Mutembei [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and Article 159(2) of the Constitution read with Sections 1A and 1B 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, "Alubisia v Board of Management Fr Diaz Girls Secondary School (Cause 191 of 2018) [2024] KEELRC 1253 (KLR)", Case Analysis (2024). Cause No 191 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1253/eng@2024-05-08

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