Motaung v Semasource Kenya EPZ Limited t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022 & E052 of 2023 (Consolidated)) [2025] KEELRC 1599 (KLR)

The court found that the ELRC (Procedure) Rules 2024 do not provide for stay of proceedings pending appeal. Order 42 Rule 6 CPR grants stay jurisdiction only in two scenarios: as an appellate court from the Magistrate's Court, or as the court being appealed from at the Court of Appeal. Since the Court of Appeal had already dismissed the appeal and the certification application for Supreme Court appeal was pending, no appeal within Order 42 Rule 6 was before the court, and Section 23A of the Supreme Court Act reserves such stays to the Supreme Court.

The Court of Appeal had held the jurisdictional challenge was a factual point for the trial court and dismissed the appeal. Granting a stay pending a certification application would, in effect, allow the trial court to interfere with or annul a superior court's concluded judgment, contrary to the hierarchical structure of the courts and the principle of stare decisis as affirmed in Kenya Hotel Properties Limited.

The court adopted Ringera J's principles in Global Tours and Travels that stay of proceedings is a matter of judicial discretion exercised in the interest of justice, and the Kensalt factors. However, it distinguished the Kensalt decision because in that case there was an appeal properly before the Court of Appeal from the trial court, whereas here the Court of Appeal had concluded its judgment and only a certification application for Supreme Court leave was pending.