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ELRCDismissedNot stated in the extract (Petition filed in 2023)· [2025] KEELRC 1599 (KLR)

Motaung v Semasource Kenya EPZ Limited t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022 & E052 of 2023 (Consolidated)) [2025] KEELRC 1599 (KLR)

Employment and Labour Relations Court
26 May 2025
3,182 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi dismissed an application by the 1st and 2nd Respondents (Meta Platforms Inc and another) seeking a stay of proceedings in a petition pending before it, pending their application for certification and leave to appeal to the Supreme Court from a Court of Appeal judgment of 20th September 2024, and further pending the intended appeal to the Supreme Court. The Petitioners and Katiba Institute raised a preliminary objection contending that once the jurisdiction of the Court of Appeal and Supreme Court had been invoked, the ELRC lacked jurisdiction over the application dated 15th October 2024. The court framed two issues: its own jurisdiction to entertain the application, and whether the application sought to countermand the Court of Appeal judgment. Applying Order 42 Rule 6 of the Civil Procedure Rules (which all parties agreed applied) and Section 23A of the Supreme Court Act, the court held that Order 42 Rule 6 was not engaged because there was no appeal from the lower court to the ELRC and no appeal pending at the Court of Appeal from its decision - the Court of Appeal had already dismissed the appeal and remitted the petition for hearing on the merits. It further held that the trial court lacked jurisdiction to countermand a concluded Court of Appeal judgment by staying its own proceedings, distinguished the Kensalt decision relied on by the Respondents, and echoed the Sheila Kabole Mabwa 'carcass' metaphor. The application was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELRC to grant stay of proceedings pending certification/leave to appeal to the Supreme Court

Holding

The court lacks jurisdiction; Section 23A of the Supreme Court Act vests exclusive jurisdiction over stays pending Supreme Court appeals in the Supreme Court, and Order 42 Rule 6 CPR is not engaged where no appeal is pending from this court

Reasoning

The court found that the ELRC (Procedure) Rules 2024 do not provide for stay of proceedings pending appeal. Order 42 Rule 6 CPR grants stay jurisdiction only in two scenarios: as an appellate court from the Magistrate's Court, or as the court being appealed from at the Court of Appeal. Since the Court of Appeal had already dismissed the appeal and the certification application for Supreme Court appeal was pending, no appeal within Order 42 Rule 6 was before the court, and Section 23A of the Supreme Court Act reserves such stays to the Supreme Court.

p. 4
02

Whether the stay application countermanded the Court of Appeal judgment of 20th September 2024

Holding

Yes; once the Court of Appeal found the trial court had jurisdiction and referred the matter back, the trial court could not stay proceedings pending certification for a further appeal

Reasoning

The Court of Appeal had held the jurisdictional challenge was a factual point for the trial court and dismissed the appeal. Granting a stay pending a certification application would, in effect, allow the trial court to interfere with or annul a superior court's concluded judgment, contrary to the hierarchical structure of the courts and the principle of stare decisis as affirmed in Kenya Hotel Properties Limited.

p. 6
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Judicial discretion to stay proceedings in the interest of justice

Holding

Even applying the Global Tours and Travels principles, the discretion could not be exercised because the court lacked jurisdiction over the matters pending elsewhere

Reasoning

The court adopted Ringera J's principles in Global Tours and Travels that stay of proceedings is a matter of judicial discretion exercised in the interest of justice, and the Kensalt factors. However, it distinguished the Kensalt decision because in that case there was an appeal properly before the Court of Appeal from the trial court, whereas here the Court of Appeal had concluded its judgment and only a certification application for Supreme Court leave was pending.

p. 6

Legal principles established

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  • Once the Court of Appeal has delivered judgment on an appeal from a trial court, the trial court lacks jurisdiction to stay its own proceedings pending a certification application for an appeal to the Supreme Court
  • Order 42 Rule 6 of the Civil Procedure Rules applies only where there is an appeal to the court from a lower court or an appeal pending at the Court of Appeal from that court's decision

Court orders

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  1. 1.The Applicants' Notice of Motion dated 15th October 2024 seeking stay of proceedings in the petition is dismissed
  2. 2.Costs of the application awarded to the Petitioners in the cause
On appeal from
Court of Appeal
Civil Appeal No. E445 of 2023
Jurisdiction invoked
Article 162(2) of the Constitution (implied); application brought under Order 42 Rule 6 of the Civil Procedure Rules as agreed by parties

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, "Motaung v Semasource Kenya EPZ Limited t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022 & E052 of 2023 (Consolidated)) [2025] KEELRC 1599 (KLR)", Case Analysis (2025). Not stated in the extract (Petition filed in 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1599/eng@2025-05-26

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