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ELRCStruck OutNot stated in the judgment

Kenya Union of Clinical Officers v Kirinyaga County Public Service Board; Public Service Commission (Interested Party) (Miscellaneous Case E002 of 2021) [2025] KEELRC 58 (KLR)

Employment and Labour Relations Court
23 January 2025
2,581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenyan courts cannot grant a stay of execution unless an appeal actually exists — file your notice of appeal first, or your stay application will be struck out with costs.

What this practically means

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Executive summary

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The Applicant moved the Employment and Labour Relations Court at Nyeri, by Notice of Motion dated 27th August 2024, seeking a stay of the court's ruling and orders of 9th August 2024 enforcing a Public Service Commission decision of 14th April 2021 reinstating members of a union, alternatively maintenance of status quo, pending an intended appeal to the Court of Appeal. The Respondent opposed through grounds of opposition, contending among other things that no notice of appeal had been filed, that the court was functus officio, and that the application was res judicata and an abuse of process. The court framed four issues: jurisdiction, functus officio, res judicata, and whether the Order 42 rule 6 threshold for stay was met. It resolved the matter on the threshold jurisdictional issue. Under Order 42 rule 6, a trial court may grant stay only where an appeal is pending, and an appeal to the Court of Appeal is deemed filed only when a notice of appeal has been given under that Court's rules. Although both parties had orally requested leave to appeal when judgment was delivered on 9th August 2024, no notice of appeal had been lodged within the prescribed fourteen days. Relying on the Nguruman decision, the court held that, like the Court of Appeal, it must strike out a stay application once it finds no pending appeal or notice of appeal. The application was struck out with costs to the Respondent on 23rd January 2025.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to grant the stay order sought.
  2. 2.Whether the court is functus officio.
  3. 3.Whether the application is res judicata.
  4. 4.Whether the application meets the legal threshold for granting stay of execution pending appeal.

Key legal issues

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Whether the court has jurisdiction to grant a stay of execution pending appeal where no appeal has been filed and no notice of appeal has been given

Holding

It does not. Order 42 rule 6 permits a trial court to grant stay only where there is a pending appeal, and an appeal to the Court of Appeal is deemed to exist only upon filing of the appeal or giving of a notice of appeal. As neither had occurred, the court lacked jurisdiction and struck out the application.

Reasoning

The court analysed Order 42 rule 6 of the Civil Procedure Rules and its side note, 'Stay in case of appeal', holding that the jurisdiction to grant stay arises only where an appeal is pending. Under subrule (4), an appeal to the Court of Appeal is deemed filed only when notice of appeal has been given under that Court's rules. In this case leave to appeal had been granted on 9th August 2024 and fourteen days had lapsed without a notice of appeal being lodged. Relying on the Nguruman decision, where the Court of Appeal strikes out rule 5(2)(b) applications absent a notice of appeal, the court found the position the same before the trial court and struck the application out with costs.

p. 5

Legal principles established

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  • A trial court can only exercise the power to grant stay of execution under Order 42 rule 6 when there is a pending appeal, evidenced by a filed appeal or a duly given notice of appeal, save for an informal application under subrule (5).
  • An application for stay pending appeal must be struck out the moment the court realises that no appeal is pending and no notice of appeal has been given.

Court orders

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  1. 1.The application for stay of execution is struck out.
  2. 2.Costs of the application awarded to the Respondent.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay in case of appeal), as read with Rule 73 of the ELRC Procedure Rules

Relief refused

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Stay of implementation of the ruling and order of 9th August 2024 and consequential orders enforcing the PSC decision of 14th April 2021 pending the intended appeal

No appeal has been filed and no notice of appeal has been given, so the court lacks jurisdiction to grant stay pending a non-existent appeal.

p. 5

Alternative orders of maintenance of status quo pending the intended appeal

Fell with the application, which was struck out for want of a pending appeal.

p. 5

Costs

Costs of the application awarded to the Respondent ("I strike out the instant application for stay with costs").

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.

Consequently, I find that there is no pending appeal in relation to the judgment herein and this court lacks jurisdiction to grant stay of execution pending a non-existent appeal.
p. 5Jurisdiction to grant stay pending appeal
It follows that even this Court should strike out an application for stay pending appeal the minute it realizes that there exists no appeal pending or that no notice of appeal has been given as required by the Court of Appeal rules.
p. 5Duty to strike out stay applications where no appeal exists
Accordingly, I strike out the instant application for stay with costs since there is neither a pending appeal nor notice of appeal given after the impugned judgment was entered on 9th August 2024, and leave to appeal was granted.
p. 5Final orders

Issues in the judgment

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minor

The supporting affidavit is sworn by Carolyne Kinyua, described as 'the Respondent's County Attorney', yet she is identified as supporting the Applicant's application, creating an internal inconsistency in the parties' descriptions.

minor

The judgment is not headed with a case title or case number, and the names of the parties are not disclosed anywhere in the text.

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, "Kenya Union of Clinical Officers v Kirinyaga County Public Service Board; Public Service Commission (Interested Party) (Miscellaneous Case E002 of 2021) [2025] KEELRC 58 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/58/eng@2025-01-23

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