Kazungu v Clerk, County Assembly of Taita Taveta and County Assembly of Taita Taveta & 2 others (Employment and Labour Relations Petition E005 of 2025) [2025] KEELRC 3752 (KLR)
The bottom line
#Kenya's High Court threw out a duplicate stay application, confirming parties cannot chase the same order in two courts at once.
What this practically means
#Executive summary
#Key legal issues
#Whether abuse of court process can ground a preliminary objection
Generally no, because abuse allegations require evaluation of facts; but yes where the abuse is apparent on the face of the record on uncontested facts needing no factual investigation.
Relying on Mukisa Biscuits, the court held that a preliminary objection must rest on a pure point of law. Abuse of process ordinarily requires inquiry into the parties' conduct and procedural history, which is factual. However, where duplication of proceedings is uncontested and evident on the record, no factual ascertainment is needed and the objection is properly taken, consistent with Article 159 and the overriding objective.
Whether the Court has jurisdiction to entertain a stay application duplicative of one pending in the Court of Appeal
No. Order 42 Rule 6 permits an appellate stay application only after the Superior Court has declined a stay or granted it on aggrieving conditions, and the court cannot adjudicate a matter already before the Court of Appeal.
The court found the Respondents' argument that simultaneous applications in both forums are permissible to defy the clear terms of Order 42 Rule 6. Even assuming otherwise, the Court of Appeal had already heard a similar application and reserved its ruling, so entertaining the present application would violate hierarchical norms and disrupt the orderly administration of justice.
Whether parallel stay applications constitute forum shopping
Yes; filing an identical stay application in the trial court while a similar application pends in the Court of Appeal, on which interim relief was refused, is abuse of process and forum shopping.
The court noted the uncontested facts that the Respondents had applied for a stay before the Court of Appeal, that interim relief had been refused, and that a ruling was slated for 13th February 2026. In those circumstances duplicating the application in the trial court was visibly abusive and required no factual investigation.
Legal principles established
#- A preliminary objection grounded on abuse of court process is proper where the alleged abuse is apparent on the face of the record on uncontested facts requiring no factual investigation.
- Order 42 Rule 6 of the Civil Procedure Rules contemplates an application to the Court of Appeal for a stay only where a similar application has first been made in the Superior Court and declined or granted on aggrieving conditions.
- A trial court cannot entertain a stay application duplicative of one pending before the Court of Appeal, as this would violate hierarchical principles.
Court orders
#- 1.The Petitioner's preliminary objection is sustained.
- 2.The Respondents' Notice of Motion application dated 5th November 2025 seeking a stay of proceedings is dismissed with costs.
- Jurisdiction invoked
- Inherent jurisdiction of the High Court read with Article 159 of the Constitution of Kenya, 2010 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu v Clerk, County Assembly of Taita Taveta and County Assembly of Taita Taveta & 2 others (Employment and Labour Relations Petition E005 of 2025) [2025] KEELRC 3752 (KLR)", Case Analysis (2025). Not stated in the judgment (the related appeal is Civil Appeal No. E 072 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3752/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.