Kania v Kenya Commercial Bank Plc & another (Constitutional Petition E003 of 2023) [2025] KEELRC 571 (KLR)
The bottom line
#Kenya's Employment Court stayed an employment dispute so arbitration rights survive appeal, ruling a late filing wasn't fatal.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application under rule 32(2) of the Mutunga Rules
Though filed outside the 14-day window, the application was not filed after inordinate delay; the court invoked rule 3(8) to deem it properly filed, with prejudice cured by costs.
The rule is discretionary and read with rule 3(8) and the overriding objective of facilitating access to justice. Article 159(2)(d) and section 20(1) of the ELRC Act require justice without undue regard to procedural technicalities. The application was filed about two months after the ruling, which the court held was not inordinate, and the Petitioner's prejudice was compensable by an award of costs.
Whether to stay proceedings pending the appeal against the refusal to refer the dispute to arbitration
Stay granted. Complying with directions to file a response would amount to a waiver of the right to arbitrate, rendering the appeal nugatory.
The trial of the matter during the pending appeal would force the Applicant either to abandon arbitration or sacrifice its right to a fair trial. The stay is a discretionary remedy exercised in the interests of justice, weighing factors such as expeditious disposal and arguability of the appeal; the arguable issue of whether employment disputes are suitable for arbitration sufficed.
Appropriateness of Order 42 rule 6 CPR to stay of proceedings
The conditions in Order 42 rule 6(2) apply to stay of execution, not stay of proceedings.
Both parties cited Order 42 rule 6(2), but the court held the sub-rule was intended for stay of execution of decrees and orders pending appeal, so its conditions are not prerequisites for stay of proceedings pending appeal from an interlocutory order.
Further affidavit filed without leave
The further affidavit dated 17th January 2025 was expunged, but the court noted it could still discern the appeal from the Notice of Appeal and the affidavit of 11th November 2024.
The affidavit was filed without leave of the court and was therefore expunged. However, the court observed that the material facts supporting the application — the Notice of Appeal, the grievances on appeal, and the issue of delay — were already evident in the earlier affidavit, so expungement did not defeat the application.
Legal principles established
#- Rule 32(2) of the Mutunga Rules is discretionary; the court retains jurisdiction to validate a stay application filed outside the 14-day window.
- Stay of proceedings impedes access to justice and should only issue for cogent reasons.
- Order 42 rule 6(2) CPR conditions apply solely to stay of execution, not stay of proceedings pending appeal from interlocutory orders.
- A party invoking section 6 of the Arbitration Act who files a response to the petition loses the option of arbitration; proceedings may be stayed to preserve the pending appeal.
Court orders
#- 1.The further affidavit by the Applicant's Group General Counsel dated 17th January 2025 is expunged from the court record
- 2.Proceedings in the Petition are stayed pending the hearing and determination of the appeal against the court's order of 26th September 2024 to the Court of Appeal
- 3.Costs of the application are granted to the Petitioner
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act, 2011; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 42 rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kania v Kenya Commercial Bank Plc & another (Constitutional Petition E003 of 2023) [2025] KEELRC 571 (KLR)", Case Analysis (2025). Constitutional Petition No E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/571/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.