Josephat Muoki Kiluta v James Murisho t/AaLaibon Hotel [2021] KEELRC 2411 (KLR)
The bottom line
#A Kenyan court refused to pause an employment case because the appellant failed to attach the very ruling it was appealing, and appeals rarely stop trials.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of execution and stay of further proceedings of the trial court's ruling of 5th February 2021 pending appeal should be granted
- 2.Whether the appellant demonstrated grounds warranting interruption of the trial court's direction that the respondent's case be heard on 24th March 2021
Key legal issues
#Whether stay of proceedings pending appeal should issue where the impugned ruling is not placed before the court
Stay was refused because the appellant failed to attach the ruling of 5th February 2021 despite being directed to file it, so the court could not verify the appellant's one-sided account
The court noted the ruling was not attached to the application or supporting affidavit, and a supplementary affidavit directed on 18th March 2021 was never filed. Without the impugned ruling or the record of appeal, the background could not be verified, being only the appellant's own averments. Such omission was fatal to the application.
Whether the trial court's order re-opening the respondent's case was so prejudicial as to warrant a stay
The order to re-open the case fell within Rule 14 of the ELRC (Procedure) Rules, 2016, and no judgment had issued, so the appellant suffers no irreversible prejudice if afforded cross-examination and recall rights
The court held that allowing a party to file and exchange witness statements before judgment is within the trial court's powers under the ELRC Procedure Rules. Since judgment had not issued, each party retains a fair opportunity to urge its case on the merits, and prejudice could be cured by allowing the appellant to cross-examine and recall witnesses.
Legal principles established
#- An application for stay of proceedings interrupts a party's right to conduct its litigation and should be allowed only in the rarest of cases
- A party may, with leave, be allowed to amend pleadings and file and exchange witness statements before judgment is issued under Rule 14 of the ELRC (Procedure) Rules, 2016
- Failure to avail the decision challenged on appeal is fatal to an application founded on it
Court orders
#- 1.The hearing before the trial court shall proceed as directed on 5th February 2021
- 2.The appellant shall be allowed sufficient time and opportunity to cross-examine the respondent and its witnesses
- 3.The appellant may recall the appellant's witnesses to respond to any matter newly introduced by the respondent
- 4.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrate's Court (ELRC)
- CM ELRC No. 362 of 2019
- Jurisdiction invoked
- Appellate/interlocutory jurisdiction of the ELRC over appeals from the subordinate court, with stay of proceedings sought under Order 42 Rule 6 of the Civil Procedure Rules and the court's inherent jurisdiction
Relief refused
#Stay of execution and stay of further proceedings of the trial court's ruling of 5th February 2021 and the hearing scheduled for 24th March 2021, pending appeal
The impugned ruling was not attached, denying the court the benefit of the decision challenged; the orders were consistent with Rule 14 of the ELRC (Procedure) Rules, 2016, and no judgment had issued, so each party retains a fair opportunity to urge its case
Costs
Each party shall bear own costs.
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.
On the material before this court, the hearing before the trial court shall proceed as directed on 5 th February, 2021 save the appellant shall be equally allowed sufficient time and opportunity to cross-examine the respondent and its witnesses and to recall the appellant to respond to any matter that has now been introduced by the respondent.
Each party shall have the right to a fair bearing before the trial court.
Each party shall bear own costs.
And application seeking stay of proceedings is a serious matter and such relates to interruption in the right that a party has conduct of his litigation and should only be allowed in the rarest of cases.
Issues in the judgment
#Internal date inconsistencies: the appellant's affidavit chronology dates the formal proof allocation to 28th November, 2018 although the suit was filed on 19th March, 2019, and the judgment elsewhere refers to the trial court ruling as delivered on '5 th March, 2021' whereas throughout it is dated 5th February, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Muoki Kiluta v James Murisho t/AaLaibon Hotel [2021] KEELRC 2411 (KLR)", Case Analysis (2021). Not stated in the judgment (arising from Milimani CM ELRC No. 362 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2411/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.