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ELRCDismissedELRC Petition No. E002 of 2025 - Notice of Motion dated 27th June, 2025· [2025] KEELRC 2242 (KLR)

Muganda v Brookside Dairy Limited & 2 others (Petition E002 of 2025) [2025] KEELRC 2242 (KLR)

Employment and Labour Relations Court of Kenya
29 July 2025
3,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kisumu employment court refused to stop a judgment, ruling that wanting to appeal alone is not enough to halt proceedings.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu (Dr. Jacob Gakeri, Judge) delivered virtually on 29th July, 2025, dismissing the Petitioner's Notice of Motion dated 27th June, 2025 brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant, Titus Owino Muganda, sought to arrest the judgment scheduled for delivery on 8th July, 2025 in ELRC Petition No. E002 of 2025 pending an intended appeal to the Court of Appeal. He complained that on 17th June, 2025 the court had allowed the respondents, despite late non-filing of submissions, to replace a witness statement of Anne Kariuki with a Replying Affidavit and introduce further affidavits and documents which rebutted his submissions, without his being granted an opportunity to respond. The 1st and 4th respondents opposed, arguing that leave had been granted to both parties, that no appeal was demonstrated as pending, and that the application was an abuse of process aimed at delaying the dispute. The court traced the procedural history and found that counsel for the Petitioner had agreed to the impugned directions on 17th June, 2025 and only moved ten days later. It held that amendment of pleadings is statutory, may be allowed at any stage before judgment, and that the Petitioner had a corresponding right to respond or seek expunction of the new documents but failed to exercise it. Applying the high and stringent test for stay of proceedings and Article 159(2)(c)'s emphasis on substantive justice, the court found no exceptional circumstances or nugatory-appeal risk demonstrated. The application was disallowed with each party bearing their own costs.

Key legal issues

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01

Whether the threshold for stay of proceedings/arrest of judgment was met

Holding

The application failed; the applicant did not demonstrate exceptional circumstances or that the appeal would be rendered nugatory, and had not even shown a pending appeal (no Memorandum of Appeal, draft, or Notice of Appeal served)

Reasoning

The court applied the high and stringent test for stay of proceedings, which seriously interferes with a litigant's right to conduct litigation and access to justice. Under Order 42 Rule 6, an appeal per se does not operate as a stay. The applicant filed the motion 10 days after agreeing to the impugned directions, failed to show prejudice, and could have responded to the new documents or sought their expunction. Substantive justice under Article 159(2)(c) favoured proceeding to judgment.

p. 7
02

Whether the leave granted on 17th June, 2025 to the respondents to file a Replying Affidavit and documents was irregular

Holding

No; amendment of pleadings is statutory and may be allowed at any stage, and leave was granted to both parties, preserving the Petitioner's right to respond

Reasoning

Rule 34 of the ELRC (Procedure) Rules, 2024 and Order 8 Rule 3(1) of the Civil Procedure Rules permit amendment with leave at any stage. The amendment sought was to replace a witness statement with a Replying Affidavit, the proper mode of adducing documentary evidence in Petitions. Counsel for the Petitioner initially objected but then agreed, and leave was granted to both parties. The Petitioner could have filed a supplementary affidavit, supplementary submissions, or sought expunction of objectionable documents but chose not to.

p. 6

Legal principles established

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  • Stay of proceedings is a grave judicial action with a high and stringent threshold; an appeal per se is not sufficient to stay proceedings
  • A party may amend pleadings with leave of the court at any stage of the proceedings, including after close of pleadings
  • An amendment to pleadings can be done at any time before delivery of judgment

Court orders

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  1. 1.The application dated 27th June, 2025 is disallowed
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 8 Rule 3(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 34
  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Limitations Act

Cases cited (8)

  • Kenya Wildlife Service V James Mutembei
    [2019] KEHC 10478 KLR
  • Central Bank of Kenya V Trust Bank Ltd
    [2000] EA 365
  • Eastern Bakery V Castellino
    [1958] EA 461 (AK)
  • Joseph Ochieng & 2 Others V First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Peter Odede Okwombo V South Nyanza Sugar Company
    [2021] eKLR
  • Microsoft Corporation V Mitsumi Garage Ltd & Another
    Nairobi HCC 810 of 2001 [2001] EA 460
  • William Odhiambo Ramogi & 2 Others V Attorney General & 2 Others
    [2019] eKLR
  • Kenya Wildlife Service V James Mulembei
    [2019] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Muganda v Brookside Dairy Limited & 2 others (Petition E002 of 2025) [2025] KEELRC 2242 (KLR)", Case Analysis (2025). ELRC Petition No. E002 of 2025 - Notice of Motion dated 27th June, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2242/eng@2025-07-29

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