Michael Njai v Juan Torres & another [2015] KEELRC 1054 (KLR)
The bottom line
#Kenya's Industrial Court paused a contempt case so respondents could appeal orders made without their advocates present, requiring them to file the appeal within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court may apply the Civil Procedure Act and Civil Procedure Rules to an application for stay of proceedings given gaps in the Industrial Court (Procedure) Rules
- 2.Whether the Respondents have satisfied the principles for grant of a stay of proceedings pending their intended appeal, namely an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
- 3.Whether the Court is functus officio having made the ruling and directions of 3rd February 2015
- 4.Whether the Court's directions of 3rd February 2015, issued without the Respondents' advocates present, violated their right to a fair hearing in contempt proceedings
Key legal issues
#Applicability of the Civil Procedure Act and Rules to Industrial Court proceedings
It is not fatal for a party to apply the Civil Procedure Act and Rules where the Industrial Court (Procedure) Rules are inadequate, and the Court retains inherent power to give directions.
The Court noted a gap in the Industrial Court (Procedure) Rules regarding stay of proceedings. Where the Industrial Court Act and its Rules do not adequately address procedure, parties may resort to other applicable written law, particularly the Civil Procedure Act and the Civil Procedure Rules, 2010. Where both remain inadequate, the Court exercises inherent power to direct parties as required. The Respondents' invocation of Order 42 Rule 6 and Sections 1A, 1B and 3A of the Civil Procedure Act was therefore competent.
Principles governing stay of proceedings pending appeal
The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory or futile if stay is denied; the Court does not go deeply into the merits.
Applying UAP Provincial Insurance Company Limited v Michael John Becket and Standard Limited v Wilson Kalya, the Court set out the twin requirements of an arguable, non-frivolous appeal and futility of the appeal if proceedings continue. The Court added the principle from David Morton Silverstein v Atsango Chesoni, that where the intended appeal attacks an order, staying proceedings is appropriate since success on the appeal decides the matter, while failure leaves the applicants no worse off. A draft memorandum of appeal was attached to the application.
Alleged violation of the right to fair hearing in the directions of 3rd February 2015
The Respondents' contention that the directions of 3rd February 2015 denied them fair hearing formed the basis of the intended appeal and supported the grant of stay of proceedings.
The Respondents argued that substantive orders were made against them on 3rd February 2015 without notice, while a counsel holding brief could not take instructions, compromising their right to fair trial in contempt proceedings touching their liberty. The Court found merit in staying proceedings so that these issues could be determined on appeal, observing that contempt proceedings challenge liberty and that to revisit the same issues would amount to the Court seating on its own appeal.
Functus officio
The Court had already addressed its mind to the issues raised in the ruling and directions of 3rd February 2015, and revisiting them would amount to sitting on its own appeal.
Both parties invoked the functus officio doctrine: the Claimant argued the Court could not vary or revoke its refusal to stay proceedings on 3rd February 2015, citing Muiri Coffee Estate Ltd v KCB; the Respondents argued the Court lacked jurisdiction on that date. The Respondents also conceded the Court had not determined a stay of proceedings application since directions permitted a formal application. The Court resolved the issue by holding that, having addressed its mind to the issues, it could not go back on similar issues.
Legal principles established
#- An applicant for stay of proceedings pending appeal must show an arguable appeal and that the appeal will be futile if stay is not granted
- Where the Industrial Court Act or its Rules do not adequately address procedure, parties may have recourse to the Civil Procedure Act and Rules, and thereafter to the Court's inherent power
- A court that has already addressed its mind on issues raised cannot revisit the same issues without sitting on its own appeal
Court orders
#- 1.Proceedings before the Industrial Court shall be stayed pending the Respondents' intended appeal
- 2.The stay shall not exist in oblivion noting the orders of 3rd February 2015
- 3.Where the intended appeal is not filed within 30 days from the date of the order, the Claimant shall be at liberty to move the Court as appropriate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Industrial Court read with Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 12(3) of the Industrial Court Act and Rules 16(1), (5) and 27(g) of the Industrial Court (Procedure) Rules, 2011
Quotable passages
#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 order for the applicant to success 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 of proceedings is not granted the appeal when ultimately heard will be a futile exercise
Where the Industrial Court Act or the Rules thereto, the Industrial Court (Procedure) Rules, 2011 do not adequately address the procedure or manner of filing documents and the process of the court, parties have recourse to any other written law application to this jurisdiction especially the Civil Procedure Act and the Rules thereto
Proceedings herein shall be stayed pending the Respondents intended appeal. such stay shall not exist in oblivion noting the orders of 3 rd February 2015. Where the intended appeal is not filed within 30 days from the date hereof, the Claimant shall be at liberty to move the Court as appropriate.
The Court having addressed its mind to the issues so far raised, to go back on similar issues would be to seat on its own appeal.
Issues in the judgment
#The judgment repeatedly misspells the doctrine of functus officio as 'factus officio'
The supporting affidavit misstates the date of the ruling as 3rd February 2014 when the judgment elsewhere records it as 3rd February 2015
The judgment itself contains conflicting statements on whether the Court has already determined a stay of proceedings application - the Respondents state no determination was made, while the Claimant contends one was made and rejected
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Njai v Juan Torres & another [2015] KEELRC 1054 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1054/eng@2015-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.