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ELRCDismissedELRC Cause No. E047 of 2023

Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited (Cause E047 of 2023) [2025] KEELRC 339 (KLR)

Employment and Labour Relations Court
6 February 2025
MMM. Mbarũ
1,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to pause an employment case because the company never actually filed its intended appeal.

What this practically means

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Executive summary

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The respondent, Kenya Marine Contractors (EPZ) Limited, applied under Rule 45 of the Employment and Labour Relations Court (Procedure) Rules for a stay of proceedings in ELRC Cause No. E047 of 2023 pending an intended appeal against the ruling of 26 September 2024, which reinstated the claimant's suit previously dismissed for want of attendance and prosecution, and awarded the claimant costs of Ksh. 20,000. The respondent, through the affidavit of its general manager Michael Tham, argued the appeal was arguable and proceedings would be rendered nugatory absent a stay. The claimant opposed, contending the application was defective, that no draft memorandum of appeal was annexed, no security offered, no leave sought for an out-of-time appeal, and that the application was a delay tactic. The claimant further alleged the respondent was under administration, that the respondent's advocates lacked authority under Sections 560 and 581 of the Insolvency Act, and that a defective appeal, E230 of 2024 at Mombasa, had been filed out of time. The court applied the principle that a stay of proceedings pending an intended appeal turns on whether there is a draft memorandum of appeal likely to be rendered nugatory without a stay, and acknowledged that a stay is a serious, grave and fundamental judicial action impinging on access to justice, the right to be heard without delay and the right to a fair trial. Finding that the respondent had only filed a Notice of Appeal, no draft memorandum of appeal and no demonstrated loss, the court held the fundamental principles for a stay were not met and dismissed the application with costs to the claimant, with hearing directions on the claim to be issued.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's application for a stay of proceedings pending an intended appeal from the ruling of 26 September 2024 should be granted
  2. 2.Whether the intended appeal is arguable and would be rendered nugatory if a stay is not granted
  3. 3.Whether the application was brought expeditiously and in the interests of justice

Key legal issues

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01

Whether the requirements for a stay of proceedings pending an intended appeal were met

Holding

The application was dismissed because the respondent neither filed a draft memorandum of appeal nor demonstrated the loss to be suffered if proceedings continued; the intended appeal was not actualised.

Reasoning

The court applied the principles from Makokha v County Government of Bungoma, that the court considers whether a draft memorandum of appeal exists and whether the proceedings would be rendered nugatory without a stay. It also relied on the principle that a stay of proceedings is a grave judicial action impinging on access to justice and the right to a fair hearing, balancing the unfettered right of appeal against the claimant's right to have the case determined without unreasonable delay.

p. 3
02

Whether allegations that the respondent is under administration and that its advocates lack authority (under Sections 560 and 581 of the Insolvency Act) and that an appeal E230 of 2024 was filed in Mombasa affected the application

Holding

The court did not act on these allegations because they were unsupported by affidavit evidence and had not been disclosed by the respondent.

Reasoning

The claimant raised the respondent's administration and the filing of appeal E230 of 2024 in Mombasa, asserting the advocates acted without authority under the Insolvency Act. The court noted the respondent had not disclosed these matters, but equally observed the claimant only filed grounds of opposition without an affidavit swearing to those facts. The existence of the Mombasa appeal was therefore not confirmed and the allegations had no evidentiary footing.

p. 2

Legal principles established

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  • A stay of proceedings is a serious, grave and fundamental judicial action that interferes with a party's right to conduct litigation and impinges on the right of access to justice, the right to be heard without delay and the right to a fair trial.
  • The main principle guiding a stay of proceedings pending an intended appeal is whether there is a draft memorandum of appeal that is likely to be rendered nugatory if the stay is not allowed.
  • An application for a stay of proceedings pending an intended appeal must be addressed on a case-by-case basis.

Court orders

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  1. 1.The application dated 13 November 2024 is dismissed with costs to the claimant
  2. 2.Hearing directions on the claim shall be issued

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Rule 45 of the Employment and Labour Relations Court (Procedure) Rules

Relief refused

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Stay of proceedings in ELRC Cause No. E047 of 2023 pending the hearing and determination of the intended appeal from the ruling and orders made on 26 September 2024

No draft memorandum of appeal was filed; fundamental principles for the grant of a stay of proceedings were not met and the intended appeal was not actualised

p. 3

Costs of and incidental to the application to abide by the result of the appeal

The application was dismissed with costs awarded to the claimant instead

p. 3

Costs

The application is dismissed with costs to the claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is, however, acknowledged that a stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation
p. 2Nature of a stay of proceedings
Stay of proceedings impinges on the right of access to justice, the right to be heard without delay and the right to a fair trial.
p. 3Constitutional dimension of stay of proceedings
The court finds no merit in the application dated 13 November 2024. Hearing directions on the claim shall be issued. The application is dismissed with costs to the claimant.
p. 3Final orders - dismissal of the application

Issues in the judgment

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minor

Inconsistent case-numbering references: the claimant refers to 'Mombasa E230 of 2024' and later 'Appeal E230 of 2024 at Mombasa', while paragraph 10 states 'an appeal filed by Mombasa E230 of 2024', leaving the appeal number/citation formatting unclear.

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, "Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited (Cause E047 of 2023) [2025] KEELRC 339 (KLR)", Case Analysis (2025). ELRC Cause No. E047 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/339/eng@2025-02-06

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