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ELRCAllowedNotice of Motion dated 13th November 2024 ( appeal from Rumuruti Magistrate's Court Employment & Labour Relations Case No. E001 of 2024 )· [2025] KEELRC 1686 (KLR)

Maina v Shalimar Flowers (K) Limited (Cause E075 of 2024) [2025] KEELRC 1686 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
11 June 2025
AMAnna Ngibuini Mwaure
3,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court halted a Kshs.30,000 cost dismissal, confirming no one's case should be thrown out without being heard.

What this practically means

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Executive summary

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The Appellant, whose employment suit in Rumuruti Magistrate's Court was dismissed, filed a Notice of Motion dated 13th November 2024 in the ELRC at Nakuru seeking a stay of implementation of the ruling and order of 31st October 2024 by Hon. E. Ngigi (S.P.M), by which he was required to pay Kshs.30,000/= throw-away costs within 14 days for reinstatement, failing which his suit stood dismissed. The application was brought under section 12(3)(i) of the Employment and Labour Relations Court Act and Rule 17 of the ELRC (Procedure) Rules. The Appellant explained that his advocate was delayed in another courtroom on the hearing date, that he could not raise the imposed costs due to financial hardship following termination, incarceration between December 2023 and August 2024, and mental ill-health, and that his appeal was prosecuted pro bono. The Respondent opposed, contending the Appellant had not shown substantial loss nor offered security, and sought deposit of the Kshs.30,000/= if stay issued. The court framed a single issue: whether an order of stay should be granted. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, and relying on Wachira Karani v Bildad Wachira, the court held the application was filed without delay, substantial loss was demonstrated, and the dismissal without a hearing violated Articles 47, 48 and 50 of the Constitution. The application was allowed; the stay was granted, the Appellant was discharged from paying the Kshs.30,000/=, and costs of the application were to be in the cause.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules were met

Holding

The court found the application was filed timeously, that substantial loss was demonstrated, and that security was a matter for the court's discretion; the stay was granted.

Reasoning

The application was filed on 13th November 2024, shortly after the ruling of 31st October 2024, so there was no unreasonable delay. The Appellant demonstrated substantial loss: non-payment of the Kshs.30,000/= throw-away costs led to dismissal of his suit, denying him a hearing contrary to Articles 47, 48 and 50 of the Constitution. Given his financial hardship and pro bono representation, the court exercised its discretion to grant the stay and discharge the costs.

p. 6
02

Whether the trial court's dismissal for non-payment of throw-away costs offended the right to a fair hearing

Holding

Yes; dismissal without hearing the Appellant violated Articles 47, 48 and 50 of the Constitution and justified intervention.

Reasoning

The court accepted that the Appellant's advocate was delayed in another courtroom and that the Appellant was ready to proceed with witnesses. Dismissal of the suit, first at the hearing and then upon non-payment of the imposed costs, deprived the Appellant of the opportunity to be heard. Relying on Wachira Karani v Bildad Wachira, the court held the right to a hearing is inherent and must be protected jealously.

p. 6

Legal principles established

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  • All conditions for stay under Order 42 Rule 6 must be satisfied for a stay to be granted
  • A party should not be denied the opportunity to prosecute his case; the right to a hearing must be protected

Court orders

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  1. 1.Stay of implementation of the ruling and order delivered on 31st October 2024 by Hon. E. Ngigi (S.P.M) in Rumuruti Magistrate's Court Employment and Labour Relations Case, staying dismissal of the Appellant's case in default of payment of throw away costs of Kshs.30,000/= within 14 days
  2. 2.The Appellant is discharged from paying the costs of Kshs.30,000/=
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12(3)(i)
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)
  • Constitution of Kenya, 2010Articles 47, 48, 50, 159(2)(d)
  • Civil Procedure ActSection 1B

Cases cited (15)

  • Giella V Cassman Brown
    [1973] E.A
  • Sheila Wambui Muturi Peter Macharia Muiru
    [2021] KEHC 7870 (KLR)
  • Wachira Karani V Bildad Wachira
    [2016] KEHC 6334 (KLR)
  • Butt V Rent Restriction Tribunal
    [1979] KECA 22 (KLR)
  • Giafranco Manenthi & Another V Africa Merchant Assurance Co. Ltd
    [2019] eKLR
  • Nduhiu Gitahi V Warugongo
    [1988] KLR 1 KAR; [1988-92] 2 KAR 100
  • M.O.M Amin Transporters Limited and another V Alexander Ndung'u Mbugua and 2 others
    [2017] eKLR
  • Kiplagat Kotut V Rose Jebo rKpngok
    [2015] eKLR
  • Kenya Commercial Bank Limited V Sun City Properties Limited and 5 others
    [2012] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & Another
    [1986] KECA 94 (KLR)
  • Equity Bank Limited V Taiga Adams Company Limited
    [2006] eKLR
  • David Ogega Ngangi and Another V Alfred Matoya Chweya
    [2020] eKLR
  • Raj Bahadur Ras Raja vs Seth Hiralal
  • Roger V Comptoir D' Escompts De Paris
  • Richard Nchapai Leiyangu vs IEBC & 2 others
On appeal from
Rumuruti Magistrate's Court (Employment & Labour Relations)
E001 of 2024
Jurisdiction invoked
Section 12(3)(i) of the Employment and Labour Relations Court Act and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules

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, "Maina v Shalimar Flowers (K) Limited (Cause E075 of 2024) [2025] KEELRC 1686 (KLR)", Case Analysis (2025). Notice of Motion dated 13th November 2024 ( appeal from Rumuruti Magistrate's Court Employment & Labour Relations Case No. E001 of 2024 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1686/eng@2025-06-11

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