Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated on the face of the ruling (application dated 5th February 2025)· [2025] KEELRC 1959 (KLR)

Kipkoech v Huawei Technologies (Kenya & 2 others (Cause E553 of 2021) [2025] KEELRC 1959 (KLR)

Employment and Labour Relations Court
30 June 2025
BMB. O. M. Manani
2,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court paused a case because the employer's appeal raised a real legal question, even though the full appeal had not yet been filed.

What this practically means

#

Executive summary

#
The Respondents sought to strike out documents in the Claimant's bundle of documents on grounds that they were fabricated and illegally obtained; the ELRC declined that request in a ruling delivered on 16th December 2024. The Respondents lodged a Notice of Appeal and then moved this court, by application dated 5th February 2025, for a stay of proceedings pending their intended appeal to the Court of Appeal. The Claimant opposed, arguing that the application was defective because no substantive appeal had been filed, because the Employment and Labour Relations Court Rules, 2024 contain no power to stay proceedings pending appeal, and because Order 42 rule 6 of the Civil Procedure Rules deals only with stay of execution. He also urged that stay of proceedings is granted only in exceptional circumstances and proposed security of Ksh. 13,260,000.00 should a stay issue. The court held that a Notice of Appeal does not of itself constitute a filed appeal, but that Rule 2 of the Court of Appeal Rules defines 'appeal' to include an intended appeal, and Order 42 rule 4 deems an appeal filed once notice of appeal is given, so the application was legitimate. Following TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel, the court held that lacunae in the ELRC Rules may be filled by the Civil Procedure Act and Rules, giving it jurisdiction. Order 42 rule 6 was read as covering both execution and proceedings, with rule 6(2) conditions confined to execution. Applying the Global Tours & Travels factors, the court found an arguable appeal on whether article 50 of the Constitution bars irregularly obtained evidence, no undue delay, and risk of wasted judicial time, and allowed the application. Proceedings were stayed pending the intended appeal; costs of the application were made to abide the outcome of the suit. Judgment was delivered online on 30th June 2025 by B. O. M. Manani, Judge, with waiver of Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

#
01

Jurisdiction to grant stay where only a Notice of Appeal has been lodged

Holding

The court held it has jurisdiction because the rules treat an intended appeal as an appeal, and Order 42 rule 4 deems an appeal filed upon lodging a Notice of Appeal

Reasoning

Although an appeal to the Court of Appeal is only filed once the memorandum and record of appeal are lodged and paid for, Rule 2 of the Court of Appeal Rules defines 'appeal' to include an intended appeal. Order 42 rule 4 of the Civil Procedure Rules deems an appeal filed when notice of appeal is given. The court therefore treated the Respondents' Notice of Appeal as sufficient to ground the stay application in the interests of justice.

p. 3
02

Applicable procedural framework in the absence of an ELRC Rules provision

Holding

The court may resort to the Civil Procedure Act and Rules to fill gaps in the ELRC Rules, following TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel

Reasoning

The Employment and Labour Relations Court Rules, 2024 are silent on stay of proceedings pending appeal. Relying on the Court of Appeal's decision in TNT Express, the court held that parties may invoke the Civil Procedure Rules to fill the lacuna, conferring jurisdiction on the ELRC to entertain the request.

p. 3
03

Scope of Order 42 rule 6

Holding

Order 42 rule 6 covers both stay of execution and stay of proceedings, though the rule 6(2) conditions apply only to stay of execution

Reasoning

A purposeful reading of Order 42 rule 6 shows it applies to 'execution or proceedings'. The conditions in rule 6(2) (substantial loss, security) relate only to stay of execution of decrees and orders and are not required for stay of proceedings applications.

p. 4
04

Whether the stay should be granted on the facts

Holding

Stay granted: the intended appeal raises an arguable ground (whether article 50 bars admission of irregularly obtained evidence), the application was filed without undue delay, and substantial judicial time would be wasted if the trial proceeded and the appeal succeeded

Reasoning

Applying the Global Tours & Travels factors, the court found the draft Memorandum of Appeal raised an arguable question on article 50 of the Constitution deserving appellate consideration; the application was filed within about two months, discounting the Christmas vacation; and a stay would avoid wasted trial proceedings and promote expeditious resolution.

p. 5

Legal principles established

#
  • Lodging a Notice of Appeal does not of itself constitute filing of an appeal to the Court of Appeal
  • For purposes of stay applications under Order 42 rule 4, an appeal is deemed filed when a Notice of Appeal is lodged
  • Lacunae in the ELRC Rules may be filled by resort to the Civil Procedure Act and Rules
  • Stay of proceedings should be granted only in exceptional circumstances and in the interests of justice
  • Order 42 rule 6(2) conditions apply to stay of execution, not stay of proceedings

Court orders

#
  1. 1.Order to stay proceedings in the cause pending the hearing and determination of the Respondents' intended appeal against the court's orders of 16th December 2024
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

#

Legislation

  • Employment and Labour Relations Court Rules, 2024General; Rule 28(3)
  • Civil Procedure RulesOrder 42 rules 4, 6 and 6(2)
  • Court of Appeal Rules, 2022Rules 2, 5(2)(b), 77(1), 84
  • Civil Procedure ActNot specified (referred to generally)
  • Constitution of Kenya, 2010Article 50

Cases cited (3)

  • TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel
    (Civil Appeal E365 of 2018) [2022] KECA 881 (KLR) (10 June 2022)
  • Avtar Singh Bahra & another v Chief Lands Registrar & 3 others
    (Environment & Land Case 799 of 2014) [2022] KEELC 2672 (KLR) (27 June 2022)
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, as applied to ELRC proceedings through the Civil Procedure Act to fill a lacuna in the Employment and Labour Relations Court Rules, 2024

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kipkoech v Huawei Technologies (Kenya & 2 others (Cause E553 of 2021) [2025] KEELRC 1959 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (application dated 5th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1959/eng@2025-06-30

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