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ELRCDismissedNot stated in judgment (application dated 26 March 2025)· [2025] KEELRC 1932 (KLR)

Nyambu v Consolbase Limited (Cause 63 of 2019) [2025] KEELRC 1932 (KLR)

Employment and Labour Relations Court
30 June 2025
820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause a judgment's execution because the losing company never actually filed its appeal in time.

What this practically means

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Executive summary

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The respondent, Consolbase Limited, moved the Employment and Labour Relations Court at Mombasa by an application dated 26 March 2025 under Rules 18, 21, 45 and 8 of the ELRC (Procedure) Rules, seeking a stay of execution of the judgment delivered on 31 January 2025 and leave to appeal out of time, treating its Notice of Appeal dated 24 March 2025 as filed within time. The application was supported by an affidavit of Sauda Said, the administrator and human resources manager, who asserted a good and arguable appeal and that execution would render the appeal nugatory. The claimant opposed through a Replying Affidavit, arguing the application was an abuse of process, that the deponent lacked authority absent a company resolution, and that the court lacked jurisdiction to grant leave to appeal out of time; no appeal had been filed and the original 30-day stay had lapsed. Both parties relied on their filed affidavits. The court noted the 30-day stay granted at judgment to enable the parties to exercise their right of appeal under section 17 of the ELRC Act, and observed that no Notice of Appeal or appeal was ever filed, leaving the intention to appeal bare. On the second limb, the court held that Rule 18 of the ELRC Procedure Rules applies only to appeals from subordinate courts to the ELRC, and that leave to appeal out of time to the Court of Appeal must comply with the Court of Appeal rules, as held in Salat and Fahim Yasin Twaha. The court found no justified reasons to stay execution and no jurisdiction to extend time for filing an appeal to the Court of Appeal. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether stay of execution pending intended appeal should be granted

Holding

Stay refused because no Notice of Appeal or appeal was filed despite the 30-day stay granted at judgment; the intention to appeal is bare

Reasoning

The court had granted a 30-day stay on 31 January 2025 to enable the parties to exercise their right of appeal under section 17 of the Employment and Labour Relations Court Act. That period lapsed with neither a Notice of Appeal nor an appeal filed. With no appeal on foot, the foundation for the stay application was absent, and the court found no justified reasons to stay execution.

p. 2
02

Whether the ELRC has jurisdiction to grant leave to appeal out of time to the Court of Appeal

Holding

The court found no jurisdiction; extension of time for an appeal to the Court of Appeal must be sought under the Court of Appeal rules

Reasoning

The respondent relied on Rule 18 of the ELRC (Procedure) Rules, but those rules govern only appeals from subordinate courts to the ELRC. For an intended appeal to the Court of Appeal, leave and extension of time must comply with the Court of Appeal rules, as laid down in Salat and Fahim Yasin Twaha. The application was therefore misconceived.

p. 2
03

The claimant's objection that the deponent lacked authority

Holding

The judgment does not expressly resolve the objection regarding lack of a company resolution authorising the deponent

Reasoning

The claimant contended the application was an abuse of process and that Sauda Said had no authority to swear the affidavit absent a company resolution. The determination section does not make an express finding on this point; dismissal proceeded on the lack of basis for stay and want of jurisdiction over the extension request.

p. 1

Legal principles established

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  • An application for stay pending intended appeal fails where no Notice of Appeal or appeal has been filed and the intention to appeal remains bare
  • The ELRC Rules invoked apply only to appeals from subordinate courts to the ELRC, not to intended appeals to the Court of Appeal
  • Leave to file an appeal out of time concerning a court's judgment must comply with the Court of Appeal rules

Court orders

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  1. 1.The application dated 26 March 2025 is dismissed
  2. 2.The respondent to bear the costs of the application
Jurisdiction invoked
Employment and Labour Relations Court Act, section 17; Employment and Labour Relations (Procedure) Rules, Rules 18, 21, 45 and 8

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, "Nyambu v Consolbase Limited (Cause 63 of 2019) [2025] KEELRC 1932 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 26 March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1932/eng@2025-06-30

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