Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2024] KEELRC 1571 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application violated Order 9 Rule 9 of the Civil Procedure Rules
It did not; the appellant is properly represented on appeal, since Order 9 rule 9 restrictions end with the trial suit and every party has a right to legal representation under Section 22 of the ELRC Act.
The court held the appeal is separate and different from the trial suit, and though it arises from that suit, the appellant has the right to secure its advocates for the appeal. Consent was filed between previous and current advocates. The appellant cannot be restricted in filing an appeal to the advocates who attended before the trial court.
Whether to grant stay of execution pending appeal
Stay granted on condition the appellant deposits 50% of the decretal sum in a joint interest-earning account within 30 days.
The appeal was filed within time (21 days from judgment). The memorandum of appeal raises key questions of law and fact. Applying the Butt v Rent Restriction Tribunal principles and Order 42 rule 6, security was required to secure each party's rights and prevent the appeal being rendered nugatory, balancing the respondent's valid judgment against the appellant's right of appeal.
Whether there was delay in filing the appeal
No; the appeal was filed within the 30-day period under Section 17 of the ELRC Act and Rule 8 of the ELRC (Procedure) Rules, 2016.
The judgment was delivered on 29 February 2024 and the memorandum of appeal was filed on 11 April 2024, within 21 days when computed taking into account Order 50 rule 1 of the Civil Procedure Rules. There was therefore no delay in the appellant securing its rights of appeal.
Legal principles established
#- Principles for granting stay of execution pending appeal as set out in Butt v Rent Restriction Tribunal: the discretion should be exercised so as not to prevent an appeal and a stay must be granted so an appeal is not rendered nugatory.
- A party's right to legal representation on appeal is not restricted by Order 9 rule 9, which ends with the suit in the lower court.
Court orders
#- 1.Order of stay of execution of judgment in Mombasa CMELRC E393 of 2021 pending the hearing and determination of the appeal
- 2.Appellant to deposit 50% of Ksh.957,981 in a joint interest-earning account held by both parties within 30 days
- 3.Appellant to file the Record of Appeal and serve
- 4.Mention on 22 July 2024 for taking hearing directions
- 5.Costs to abide by the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court (trial court, Mombasa)
- Mombasa CMELRC E0393 of 2021
- Jurisdiction invoked
- Sections 17 and 22 of the Employment and Labour Relations Court Act, 2011; Rule 8 of the ELRC (Procedure) Rules, 2016; Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2024] KEELRC 1571 (KLR)", Case Analysis (2024). ELRC Appeal arising from Mombasa CMELRC E0393 of 2021 (application dated 12th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1571/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.