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ELRCDismissedNot stated in judgment

Peris Nyambura Kimani v Albit Petrolium Limited [2014] KEELRC 15 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 December 2014
MMM. Mbaru
2,233 words in judgment
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The bottom line

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The Employment Court refused to pause a case because the employer filing the appeal hadn't shown it had a real, arguable appeal.

What this practically means

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Executive summary

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The Respondent, through a Notice of Motion dated 25th November 2014 under Rule 16(1) of the Industrial Court (Procedure) Rules, sought a stay of proceedings in the Petitioner's petition pending its intended appeal to the Court of Appeal against the ruling of Lady Justice Monica Mbaru delivered on 18th November 2014, which had directed the Respondent to reinstate the Petitioner, provide medical support and continue her salary pending trial. The Respondent, through the affidavit of Kimeu Kimeu, Group Human Resource Manager, argued the intended appeal was arguable and that the trial, scheduled for 1st December 2014, would render it nugatory and violate its rights under Articles 27 and 50 of the Constitution. Counsel submitted that wrongful dismissal claims required a memorandum of claim with viva voce evidence rather than a summary petition procedure. The Petitioner opposed, arguing a Notice of Appeal does not stay proceedings, no draft memorandum had been filed, the cited commercial-law authorities were inapplicable to labour disputes, and that the Respondent had since frustrated the interim orders by transferring her to Industrial Area without allocating work. The court applied the UAP Provincial Insurance v Beckett test: an applicant must show an arguable, non-frivolous appeal and that without a stay the appeal would be futile. Finding the affidavit lacked material demonstration of an arguable appeal and that the authorities relied on involved existing appeals, the court dismissed the application, upheld the orders of 18th November 2014, directed that the Petitioner remain out of her workplace until duties consistent with her contract and the orders were allocated, and directed allocation of a hearing date within 14 days.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's application for stay of proceedings pending intended appeal should be granted
  2. 2.Whether the Respondent demonstrated an arguable appeal that would be rendered nugatory if stay is not granted

Key legal issues

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01

Test for stay of proceedings pending appeal

Holding

The applicant must show an arguable, non-frivolous appeal and that without a stay the appeal will be futile; the court does not go deeply into the merits

Reasoning

The court adopted the test from UAP Provincial Insurance Company Ltd v Michael John Beckett (Court of Appeal, 2004). The applicant must establish an arguable appeal and that failure to stay would render the appeal futile. The court examines whether an appeal truly exists, not its merits. Here, apart from averments from the Bar, the supporting affidavit failed to show any arguable appeal; no draft memorandum of appeal was filed, unlike in the authorities relied upon where appeals were already on file.

p. 3
02

Effect of existing interlocutory orders and obedience to them

Holding

Valid court orders must be enforced until vacated, varied or set aside, and a party who frustrates them is not to be encouraged

Reasoning

The court found that the Respondent had reinstated the Petitioner but changed her workplace and terms so as to frustrate the orders of 18th November 2014. The court held that orders of the court are not issued in vain and must be obeyed; the court must act with haste where disobedience comes to its attention, to protect the dignity and honour of the court. This conduct also weighed against the discretionary grant of a stay.

p. 4

Legal principles established

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  • To succeed in an application for stay of proceedings pending appeal, the applicant must satisfy the court that the pending appeal is arguable and not frivolous, and that if stay is not granted the appeal will be a futile exercise
  • Valid court orders are to be enforced until vacated, varied or set aside, and the court will act with haste where they are disobeyed or frustrated
  • A stay of proceedings is not granted automatically on the basis of alleged constitutional violations; strict adherence to the law is required

Court orders

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  1. 1.The Respondent's application dated 25th November 2014 is dismissed
  2. 2.The orders made on 18th November 2014 are to remain in force
  3. 3.The Petitioner will remain out of her place of work until the Respondent allocates her specific duties confirmed by the court based on her contract of employment and the obtaining orders
  4. 4.The parties are to be allocated a hearing date within the next 14 days

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Industrial Court (Procedure) Rules, Rule 16(1)

Relief refused

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Stay of proceedings pending hearing and determination of the Respondent's intended appeal to the Court of Appeal

The Respondent failed to demonstrate an arguable appeal; no draft memorandum of appeal was filed or outlined in the supporting affidavit

p. 3

Costs

No costs order recorded in the judgment; the application was dismissed and costs had been sought by both sides but none was expressly awarded.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the above, the respondents application dated 25 th November 2014 is dismissed; orders made on 18th November 2014 are to remain in force
p. 4Final orders - dismissal of stay application and continuation of interim orders
Apart from averments from the Bar, the affidavits lacks in a material way to show what arguable appeal exists that will be rendered nugatory if the orders sought herein are not granted.
p. 3Failure to demonstrate arguable appeal
Orders of the court are not issued in vain. Where the Petitioner has valid orders of this court, such orders are to be enforced until they are vacated, varied or set aside.
p. 4Enforcement of valid court orders
in orders to succeed in an application for stay of proceedings pending appeal it is necessary for the applicant to satisfy the court, firstly that the pending appeal is an arguable one, which is not frivolous, and secondly that if the stay proceedings is not granted the appeal when ultimately heard will be a futile exercise.
p. 3Test for stay of proceedings pending appeal
due to the nature of interim orders, the parties are to be allocated a hearing date within the next 14 days.
p. 4Expedited hearing direction

Issues in the judgment

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minor

Paragraph numbering skips from 11 to 13; no paragraph 12 appears in the judgment

minor

The disposition dismisses the application but makes no express order on costs despite both parties seeking costs

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, "Peris Nyambura Kimani v Albit Petrolium Limited [2014] KEELRC 15 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/15/eng@2014-12-16

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