Nigel Bright v Tractebel Engineering GmbH, formerly Lahmeyer International GmbH

Respondent/Applicant’s Case 2 The Applicant avers on 25th February 2026, it raised a preliminary objection challenging this Court’s jurisdiction to hear and determine the suit. 3 It states that the objection was founded on pure points of law, namely that the Respondent is a foreign entity not properly before the Court, that no employer–employee relationship existed between the parties as the Claimant was an independent contractor, and that the claim was statute-barred under Section 90 of the Employment Act, 2007. 4 The Applicant avers that by a ruling delivered on 28 th May 2026, the Court dismissed the preliminary objection, holding that the issues raised could not be determined at the preliminary stage without evidence, and directed the parties to proceed with the hearing of the main claim. 5 It asserts that it is aggrieved by the said ruling, and has lodged a Notice of Appeal and applied for typed proceedings to facilitate its intended appeal to the Court of Appeal. 6 The Applicant contends that the intended appeal is arguable and has reasonable prospects of success as it raises substantial issues on jurisdiction and the competency of the suit, particularly the issue of limitation Page 2 of 11

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which it states was left unresolved by the impugned ruling. 7 It further avers that unless the proceedings are stayed, the intended appeal will be rendered nugatory as the main claim has already been fixed for further directions and it will be compelled to defend the suit at considerable cost while pursuing the appeal. 8 The Applicant asserts that if the appeal succeeds, it will have incurred expenses which it is unlikely to recover since the Claimant is not a Kenyan citizen, and the Court will have expended judicial time on a suit that ought not to have proceeded. 9 The Applicant states that the Respondent will suffer no prejudice if the proceedings are stayed pending the appeal, whereas it will suffer undue prejudice if compelled to proceed with the suit as it will lose the benefit of its statutory and jurisdictional objections and incur unnecessary expense. 10 It is the Applicant’s case that the application was filed without undue delay and that it is fair, just and in the interests of justice that the orders sought be granted. Claimant/Respondent’s Case 11 In opposition to the application, the Claimant/Respondent filed grounds of opposition dated 27 th June 2026 on the following grounds: Page 3 of 11

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1. The application does not disclose any plausible reason to justify stay of proceedings. 2. The continuance of the proceedings as directed by the court does not prejudice the Respondent as it can still ably defend itself during the hearing of the main suit. 3. The Respondent does not lose its right of appeal in the event the main suit is determined against it as it still has a right of appeal. 4. The question of whether the ruling determined all issues raised on appeal can still be considered by the court upon the necessary application being filed, which none has been filed. 5. It is a principle of law and the proper administration of justice for cases to be determined expeditiously. The application prejudices the administration of law and the conclusion of the Claimant’s case. 6. The filing of a response is a legal requirement in law. Respondent/Applicant’s Submissions 12 On the applicable test, it was submitted that a stay of proceedings pending the hearing and determination of the appeal is justified. Reliance was placed on Imperial Bank Limited (In Receivership) & 2 others v Alnashir Popat & 17 others [2017] eKLR, wherein it was held: “When the High Court considers an application to Stay proceedings in its Trial jurisdiction its discretion is fettered Page 4 of 11

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by two important conditions. That there is sufficient cause to order Stay, that is, that substantial loss would ensue from a refusal to grant stay. Secondly that the Application is brought without delay. As the Trial Court, the High Court need not consider whether or not the Appeal against its decision is arguable. Indeed, it is a most embarrassing prospect for the Court to re-evaluate and comment on the correctness or otherwise of a Decision it has made and is the subject of Appeal.” 13 On sufficient cause, the Applicant submitted that it had exercised its right of appeal, and that the exercise of that right should not be unduly fettered and the court has a duty to preserve it. It relied on Butt v Rent Restriction Tribunal [1982] KLR 417, where the Court of Appeal held that the court ought to exercise its discretion so as not to prevent the appeal, if successful, from being rendered nugatory. 14 It was submitted that the central question is whether proceeding with the suit would render the intended appeal nugatory, and that in the present case it plainly would, since jurisdiction is not a procedural technicality but a fundamental threshold issue going to the competence of the Court to entertain the matter at all, such that if proceedings continued to determination and the appeal later succeeded, the entire proceedings would have been conducted without jurisdiction and would be a nullity. Page 5 of 11

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15 The Applicant submitted that prejudiced to itself is not speculative but immediate, as it would be compelled to participate in proceedings whose very foundation it contends is unlawful, prejudice that cannot be remedied by an award of costs. 16 On time, the Applicant submitted that the ruling sought to be appealed was delivered on 28 th May 2026, that there has been no inordinate delay. It acted promptly and diligently in filing its Notice of Appeal and moving the Court for a stay of proceedings. 17 On the interest of justice, it submitted that the grant of a stay is a matter of judicial discretion exercised in the interests of justice, relying on Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000), where the Court held that the court must weigh the competing interests of the parties, and the overall interests of justice when considering an application for stay of proceedings. Reliance was also placed on Halsbury's Laws of England, 5th Edition, Volume 12, paragraph 1028, cited for the proposition that a stay is intended to avoid a trial taking place where it is just and convenient to do so, to prevent undue prejudice to the opposite party or abuse of process. 18 It is the Applicant’s submission that the issue of jurisdiction is compounded by the fact that service out of jurisdiction was undertaken without leave of the Court, Page 6 of 11

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contrary to mandatory legal requirements, raising a serious and dispositive question as to the propriety of the proceedings. It was argued that allowing the matter to proceed in the face of such a challenge would prejudice it and risk wasting judicial time and resources. 19 The Applicant submitted that the benefits of granting the stay greatly outweigh any injustice that might result, and that it would suffer no real prejudice from a stay, any prejudice being remediable by costs and wholly disproportionate to the grave prejudice it stood to suffer, including the rendering of its appeal academic. 20 On jurisdiction, it was submitted that as the Employment and Labour Relations Court Rules, 2024 do not specifically provide for such an application, the Court must defer to the jurisdiction to stay proceedings vested by Order 42 Rule 6 of the Civil Procedure Rules and its inherent powers under Section 12 of the Employment and Labour Relations Court Act. Reliance was placed on Imperial Bank Limited (In Receivership) & 2 others v Alnashir Popat (supra), where it was held that an application for stay of proceedings is properly domiciled under Order 42 Rule 6(1) notwithstanding that sub-rules (2), (3) and (5) specifically reference stay of execution. 21 It is the Applicant’s submission that the scales of justice weigh decisively in favour of granting a stay, and that declining the relief sought would expose the parties and Page 7 of 11

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the Court to the real risk of conducting proceedings whose jurisdictional foundation is under active challenge, rendering the intended appeal nugatory and the entire process liable to nullification. 22 It was submitted that, in the interests of justice, judicial economy, and regard to procedure, the Court should allow the application with costs. Claimant/Respondent’s Submissions 23 On the applicable principles, it was submitted that the parameters governing stay of proceedings pending appeal were extensively discussed in Avtar Singh Bahra & another v Chief Lands Registrar & 3 others [2022] KEELC 2672 (KLR), where the court held: “ Suffice it to observe that the parameters of Stay of proceedings pending appeal were discussed extensively in the case of Kenya Wildlife Service versus James Mutembei [2019] eKLR. For coherence, the nature and import of the stay was described thus: “Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent.” The same case relied on Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000. Page 8 of 11

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24 The Respondent submitted that the court should weigh this right as against the right of the Claimant to progress the suit and the constitutional obligation of the court to hear and determine cases expeditiously. This court should not be quick to stay its proceedings on the mere allegation that the Respondent intends to file an appeal as indicated in the application. 25 It is the Respondent’s submission that no appeal had in fact been filed, only a Notice of Appeal, which is trite law is not an appeal in itself, such that staying proceedings on the basis of an intention to appeal that has not crystallized would halt the administration of justice on mere assumption. 26 The Respondent submitted that no prejudice would be occasioned to the Applicant if the stay were declined, since should the suit be determined against it, nothing would stop it from filing an appeal once all issues are determined, or from seeking stay of execution if necessary, 27 It submitted that the appeal would not be rendered nugatory since the appellate court would have the opportunity to determine all issues, unlike in the case of the interlocutory appeal intimated. Page 9 of 11

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28 It was further submitted that participation in the suit could not be deemed prejudicial as filing responses is a legal requirement imposed by law which the Respondent can choose to exercise or not. The Respondent will not be denied the chance to be heard on the sole basis that the orders sought have been declined. It will participate fully in the proceedings. 29 Relying on Mocha Hotel Ltd v Kwanza Estates Ltd [2023] KEELC 21729 (KLR), the Respondent submitted that the Respondent does not stand to suffer any prejudice. 30 The Respondent further submitted that the court ought to guard itself and ensure that its time and resources are not wasted by a party not keen to proceed especially through the filing of interlocutory applications which have been noted to cause delay. It cited Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR). 31 It is the Respondent’s submission that the application is an abuse of process intended to delay the hearing and determination of the suit that no peculiar circumstances had been set out by the Respondent/Applicant to warrant the prayers sought, and that no prejudice would be occasioned to it. 32 I have considered the averments and submissions of the parties herein. The applicant seeks stay orders pending Page 10 of 11

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appeal of the orders of this court dated 28/5/2026. The issues raised in the appeal on jurisdiction and limitation of time go to the root of the entire claim based on the celebrated case of “Lilian S”. 33 In the circumstances, I will down my tools and order further stay of this court’s proceedings pending the hearing and determination of the appeal before the Court of Appeal. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 21st Day of September 2026. HELLEN WASILWA JUDGE Page 11 of 11

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