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ELRCOtherMotion dated 4 October 2024 (Notice to Withdraw and Discontinue filed 7 February 2025)

Ndiritu v Kimotho (Miscellaneous Application E120 of 2024) [2025] KEELRC 901 (KLR)

Employment and Labour Relations Court
20 March 2025
RSRadido Stephen
466 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot appeal or 'stay' a dismissal of your own application — only positive orders can be stayed.

What this practically means

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Executive summary

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This Employment and Labour Relations Court decision in Nairobi concerns a Motion dated 4 October 2024 by Paul Tumuti Ndiritu (applicant) seeking, pending an intended appeal, a stay of execution of a Ruling by Nzioki wa Makau J which had dismissed the applicant's earlier Motion dated 13 March 2024. That earlier Motion had sought orders directing Wilfred Kimili Kimotho (Respondent) to report a workplace accident to the Director, Occupational Safety and Health and to be found to have committed a criminal offence by failing to notify the Director of the accident. The Respondent opposed the stay Motion through a replying affidavit filed 14 October 2024, contending that the Ruling contained a negative order incapable of being stayed, that a Bill of Costs had been filed and taxed, and that the Motion was an abuse of process. Directions were given on 29 January 2025, but on 7 February 2025 the applicant filed a Notice to Withdraw and Discontinue the Motion. The court (Radido Stephen J) marked the Motion as withdrawn with costs to the Respondent and closed the file. Observing on the merits, the court noted that the Motion was a non-starter because the order sought to be stayed was a dismissal - a negative order that cannot be stayed - and also corrected the date of the Ruling, which was delivered on 26 July 2024 and not 30 July 2024. No costs beyond those ordered; no authorities were cited.

Questions the Court framed

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

  1. 1.Whether the Motion dated 4 October 2024 seeking stay of execution of the Ruling of 26 July 2024 should proceed to determination, given the applicant's Notice of Withdrawal and Discontinuation

Key legal issues

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01

Whether the Motion dated 4 October 2024 was maintainable as an application for stay of the Ruling of 26 July 2024

Holding

The Motion was a non-starter in law because the order sought to be stayed was a dismissal, which is a negative order that cannot be stayed; the Motion was ultimately marked withdrawn with costs.

Reasoning

The applicant had sought to stay a Ruling which had dismissed his earlier Motion. The court observed that a dismissal order is a negative order incapable of being stayed, rendering the stay application legally defective from the outset. Before the court could rule substantively, the applicant filed a Notice to Withdraw and Discontinue, and the court marked the Motion withdrawn with costs to the Respondent.

p. 2

Legal principles established

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  • An order dismissing an application is a negative order incapable of being stayed

Court orders

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  1. 1.The Motion dated 4 October 2024 is marked as withdrawn with costs to the Respondent
  2. 2.The file is marked as closed

The bench

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

RS
majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over its own proceedings (not expressly stated in the judgment)

Relief refused

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Stay of execution of the Ruling delivered on 30 July 2024 pending inter partes hearing and pending appeal

The applicant withdrew the Motion; in any event the order sought to be stayed was a dismissal, a negative order that cannot be stayed

p. 2

Costs

The Motion dated 4 October 2024 is marked as withdrawn with costs to the Respondent.

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.

The Court must however note that the Motion under consideration was a non-starter in law because the Motion which the applicant sought to stay was dismissed. The dismissal order was a negative order that cannot be stayed.
p. 2Negative orders cannot be stayed
The Motion dated 4 October 2024 is marked as withdrawn with costs to the Respondent. The file is marked as closed.
p. 2Final orders - withdrawal with costs

Issues in the judgment

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minor

The judgment contains an internal inconsistency on the date of the Ruling sought to be stayed: the Motion prays for stay of a Ruling delivered on 30 July 2024, while the court elsewhere records the Ruling as delivered on 26 July 2024, and the opening paragraph also refers to dismissal on 26 July 2024

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, "Ndiritu v Kimotho (Miscellaneous Application E120 of 2024) [2025] KEELRC 901 (KLR)", Case Analysis (2025). Motion dated 4 October 2024 (Notice to Withdraw and Discontinue filed 7 February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/901/eng@2025-03-20

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