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ELRCDismissedEmployment and Labour Relations Court at Nairobi, Cause No. E957 of 2022 (Notice of Motion dated 25th November 2024)· [2025] KEELRC 2249 (KLR)

Gitari (Suing as the Legal Representative of the Estate of the Late Felix Gitari Mbiuki) v Laban & another (Cause E957 of 2022) [2025] KEELRC 2249 (KLR)

Employment and Labour Relations Court of Kenya
25 July 2025
1,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to pause a Machakos County Assembly employment case pending appeal, ruling the applicant's fears of loss were speculative and justice demands speedy hearings.

What this practically means

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Executive summary

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This ruling by Stella Rutto J of the Employment and Labour Relations Court at Nairobi determines a Notice of Motion dated 25th November 2024 by the Claimant/Applicant, Charles Mutembei Gitari, who was substituted for his late father Felix Gitari Mbiuki, the original Claimant who died intestate on 18th July 2023. The Applicant sought a stay of the Court's Ruling and Order of 31st July 2023, which disallowed his preliminary objection challenging jurisdiction, and a stay of further proceedings pending his appeal to the Court of Appeal (COACA/E906/2024). The Respondent, the County Assembly of Machakos, opposed, contending the jurisdictional issue was conclusively settled and that the claim arose from an employment relationship under Section 12 of the ELRC Act. The Court identified a single issue: whether the Applicant met the threshold for a stay of proceedings pending appeal under Order 42 Rule 6(1) of the Civil Procedure Rules. Applying Order 42 Rule 6 and the principles in Global Tours & Travels Limited and Athuman Nusura Juma v Afwa Mohamed Ramadhan, the Court held that whether the appeal has merit is for the Court of Appeal, that the Applicant's fear of losing the mortgaged property Karingani/Gitareni/2155 was speculative since the Counterclaim had not been heard, and that any adverse determination would remain appealable. Weighing the interests of justice, the Court found a stay would delay the expeditious disposal of a suit filed nearly three years earlier. The application was dismissed with no orders as to costs on 25th July 2025.

Key legal issues

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Whether the threshold for stay of proceedings pending appeal was met

Holding

The application failed: no substantial loss shown, fears were speculative, and a stay would delay expeditious disposal of a suit filed nearly three years earlier

Reasoning

Order 42 Rule 6(1) requires demonstration of substantial loss, filing without unreasonable delay, and security. The Court, guided by Global Tours & Travels, weighed the pros and cons in the interest of justice. It found the Applicant's claim that the estate would lose its home was mere apprehension without foundation, since the Counterclaim had not been heard and any adverse determination would remain appealable. A stay would prejudice both parties by prolonging litigation, so the application was dismissed with no orders as to costs.

p. 4

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing pros and cons including expeditious disposal, arguability of the appeal and expedition of the application
  • A court dealing with an application to stay proceedings cannot determine whether the intended appeal has merits; that is for the appellate court

Court orders

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  1. 1.The Application dated 25th November 2024 is found to be without merit and is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 48, 159(2)(d)

Cases cited (2)

  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    [2016] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules; inherent jurisdiction of the ELRC to regulate its proceedings pending appeal

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, "Gitari (Suing as the Legal Representative of the Estate of the Late Felix Gitari Mbiuki) v Laban & another (Cause E957 of 2022) [2025] KEELRC 2249 (KLR)", Case Analysis (2025). Employment and Labour Relations Court at Nairobi, Cause No. E957 of 2022 (Notice of Motion dated 25th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2249/eng@2025-07-25

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