Charles Gacheche Gicheru v SBI International Holdings Ag (Kenya) [2020] KEELRC 1381 (KLR)
The bottom line
#A Kenyan employment court refused to pause execution of a Kshs 1.67 million award because the employer's appeal paperwork was never properly served, so no valid appeal existed.
What this practically means
#Executive summary
#Key legal issues
#Competence of the notice of appeal and the application
The notice of appeal was incompetent for want of service within 7 days as required by Rule 77, and the application for typed proceedings was not served as required by Rule 82(2), so the limitation period did not stop running and no competent appeal existed on record.
The applicant did not rebut the claimant's contention of want of service. The court adopted the Court of Appeal decision in Mradula Suresh Kantaria, holding that failure to serve a notice of appeal renders it incompetent. The applicant also failed to demonstrate service of the application for typed proceedings, meaning time for lodging the appeal never stopped running. Consequently no appeal existed to support stay under Order 42.
Threshold for granting stay pending appeal under Order 42 rule 6(2)
The court declined to consider the stay threshold because the application was incompetent, and dismissed it with costs while setting aside the interim stay.
Having found that no competent notice of appeal or appeal was on record, the court held that a stay order would not issue because its purpose is to safeguard the right of hearing of an appeal, not for its own sake. It therefore did not engage the substantial loss, delay and security requirements of Order 42 rule 6(2) and dismissed the application with costs, setting aside the interim stay of 28.8.2019.
Legal principles established
#- Failure to serve a notice of appeal on all persons directly affected renders the notice of appeal, and the record of appeal, incompetent
- An appellant cannot rely on the proviso to Rule 82(1) of the Court of Appeal Rules unless the application for copies of proceedings was in writing and served on the opposite party
- A stay of execution cannot issue where there is no appeal or competent notice of appeal on record
Court orders
#- 1.The application dated 27.8.2019 is dismissed with costs
- 2.The interim order of stay granted on 28.8.2019 is set aside
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Gacheche Gicheru v SBI International Holdings Ag (Kenya) [2020] KEELRC 1381 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1381/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.