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ELRCOtherNot stated in the judgment as provided

Sidigu v Kolum & 5 others (Petition E034 of 2023) [2024] KEELRC 600 (KLR)

Employment and Labour Relations Court
13 March 2024
688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Employment Court paused its decision cancelling Chemelil Sugar's managing director appointment for 12 months, letting the company appeal before the contract lapses.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) dealt with an application by Chemelil Sugar Co Ltd and its Board (the 2 Respondents) for a stay of execution of the Court's judgment of 7 February 2024, which had issued an order of certiorari quashing the appointment of Moses Kiprop Kolum as Managing Director of the company. The Respondents filed a Notice of Appeal on 8 February 2024 and a stay application on 13 February 2024, contending that the Court had wrongly declined to accept the Petitioner's Notice of Withdrawal of the Petition before judgment and had relied on unproven evidence (a national identity card). The Petitioner opposed the application, arguing that the contract, having been found illegal, was a nullity incapable of being stayed, and sought security for costs if any stay was granted. On the law of stay, the Respondents relied on James Wangalwa & another v Agnes Nakiaka Cheseto (2012) eKLR on substantial loss. The Court held that the orders it had granted intervened in a time-bound contractual relationship which could lapse before the Court of Appeal determined the intended appeal, so the harm to the 1st Respondent would be substantial loss not capable of an effective remedy. It exercised its discretion to allow a stay of execution limited to 12 months from the date of the ruling, and ordered costs in the cause. The ruling was delivered virtually, dated and signed in Kisumu on 13 March 2024.

Questions the Court framed

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

  1. 1.Whether a stay of execution of the judgment of 7 February 2024 quashing the appointment of Moses Kiprop Kolum should be granted pending the intended appeal
  2. 2.Whether substantial loss would be occasioned to the 1st Respondent if stay is not granted
  3. 3.Whether the Petitioner's objections (that a null contract is incapable of being stayed, and that the Respondents should deposit security for costs) defeat the application

Key legal issues

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01

Whether substantial loss was demonstrated to justify a stay of execution

Holding

Yes - substantial loss was demonstrated because the contract was time-bound and might lapse before the Court of Appeal determines the intended appeal, leaving no effective remedy

Reasoning

The Court noted that the orders it had granted intervened in a time-bound contractual relationship. The contract may lapse before the Court of Appeal renders itself on the intended appeal, so any harm to the 1st Respondent may not be capable of an effective remedy, which constitutes substantial loss. The Respondents relied on James Wangalwa & another v Agnes Nakiaka Cheseto (2012) eKLR on this point. The Court therefore allowed a stay, but limited it to 12 months.

p. 3
02

Whether a null and void contract is incapable of being stayed

Holding

The Petitioner's argument that a nullity cannot be stayed did not prevail; a limited stay was nonetheless granted

Reasoning

The Petitioner argued that because the Court found the contract given to the 1st Respondent illegal, the contract became a nullity and nothing was capable of being stayed. The Court did not accept this as a bar, holding instead that the harm to the 1st Respondent would be substantial loss not capable of an effective remedy, and exercised its discretion to grant a stay limited to 12 months to enable pursuit of the appeal.

p. 3

Legal principles established

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  • Stay of execution is a discretionary remedy granted within well-established parameters, and may be granted for a limited period where the orders intervene in a time-bound contractual relationship and harm would not be capable of an effective remedy

Court orders

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  1. 1.A stay of execution of the judgment delivered on 7 February 2024 is allowed for a limited time of 12 months from the date of this Ruling
  2. 2.Costs in the Cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Discretionary power to stay execution of its own judgment (inherent/civil procedure); the judgment under challenge was issued in the Court's first-instance jurisdiction

Relief refused

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Indefinite/unlimited stay - stay granted only for a limited period of 12 months

The orders intervened in a time-bound contractual relationship; stay was limited to enable the Respondents pursue their right of appeal

p. 3

Petitioner's request for security for costs as a condition of any stay

Court did not impose such a condition; no security order was made

Costs

Costs in the Cause

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.

A stay of execution of the judgment delivered on 7 February 2024 is allowed for a limited time of 12 months from the date of this Ruling.
p. 3Final orders - stay of execution
The harm or loss which may be occasioned to the 1st Respondent in the circumstances may not be capable of an efiective remedy. It would be substantial loss.
p. 3Substantial loss as the test for stay
The order sought by the 2 Respondents is discretionary and the parameters within which the Court should exercise the discretion have taken a well-trodden path.
p. 3Discretionary nature of stay applications
Costs in the Cause
p. 3Costs order

Issues in the judgment

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minor

The date on which the Petitioner filed his submissions is left blank in the judgment

minor

The Court's final orders begin with a stray '(i)' enumerator with no subsequent items

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, "Sidigu v Kolum & 5 others (Petition E034 of 2023) [2024] KEELRC 600 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/600/eng@2024-03-13

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