[2023] KEELRC 2822 (KLR)

County Assembly Service Board, Nyamira County & 3 others v Bundi & 11 others (Appeal E021 of 2023) [2023] KEELRC 2822 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2822 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Appeal E021 of 2023

CN Baari, J

November 9, 2023

Between

County Assembly Service Board, Nyamira County

1st Applicant

The Speaker, County Assembly Nyamira

2nd Applicant

The Clerk, County Assembly Nyamira

3rd Applicant

The County Assembly, Nyamira County

4th Applicant

and

Grace Masese Bundi

1st Respondent

Vincent Nyambane Nyakieni

2nd Respondent

Winnie Makori

3rd Respondent

Gladys Motanya

4th Respondent

Job Rodgers Nyaribo

5th Respondent

Edson Mogeni Mayaka

6th Respondent

Gatwere Alloys

7th Respondent

Joash Oruko Nyachiro

8th Respondent

Lameck Osoro Kometa

9th Respondent

Jones Onduko

10th Respondent

David Matwa Nyabwari

11th Respondent

Mong’are Ondieki Obwocha Elvis

12th Respondent

Ruling

1. Before Court is the Applicants application dated 29th June, 2023, seeking to stay proceedings before the lower in Nyamira Employment and Labour Relations Cause No. E002 of 2023. It is the Applicants argument that they filed a Preliminary Objection before the Lower Court challenging the jurisdiction of the Court premised on the provisions of Article 234(2)(i) of the Constitution as read with Section 77 of the County Government Act and Section 87 of the Public Service Commission Act.

2. The Applicants aver that the Lower Court rendered a verdict wherein, it ruled that it has the jurisdiction to hear the suit before it. The Applicants further aver that they then lodged an appeal before this Court against the ruling of the Lower Court, and now seek to stay those proceedings until the appeal is heard and determined.

3. It is the Applicants’ assertion that they have raised pertinent issues and that a question of jurisdiction is a threshold matter that has to first be determined. It is the Applicants aversion that their appeal is arguable and that if the proceedings at the lower court are not stayed, the appeal filed herein, will be rendered nugatory.

4. The Respondents opposed the application vide a replying affidavit sworn by Grace Masese Bundi, on 12th July, 2023. The Respondents argue that the application is incompetent and only meant to delay the Court process.

5. The Respondents aver that the appeal is incompetent owing to failure by the Applicants to serve the appeal and that no explanation has been given for the delay. The Respondents further argue that the Record of Appeal has to date not been filed contrary to the provision of Section 79B of the Civil Procedure Act.

6. It is the Respondents’ position that the instant application is sub judice as it is similar to one filed on 16th January, 2023 before the Lower Court seeking exactly the same reliefs as one that is pending ruling before the lower court.

7. The Respondents further argue that the provisions cited only apply to disputes from County Public Service Boards and not County Assembly Service Boards, and hence the reason the preliminary objection failed.

8. It is the Respondents’ further assertion that they are on half salary, but which salary has never been paid by the Applicants and hence their hands are not clean, and are thus not deserving of this court’s discretionary orders.

9. Parties urged the application orally on 3rd October, 2023, where they reiterated their pleadings.

Determination 10. I have considered the Applicants’ application, the replying affidavit in opposition and the oral submissions by both Counsels. The issue that crystalizes for determination is whether the Applicants are deserving of stay orders.

11. Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, provides for stay of execution in the following words:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

12. The general rule in an application for stay orders is that if there is no overwhelming hindrance, a stay of execution ought to be granted so that an appeal, if successful, may not be rendered nugatory.

13. Cotton L J in Wilson v Church (No 2) 12 Ch D (1879) 454 held:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”

14. Granting of stay orders is a discretionary power of the Court given under Order 42 Rule 6(1) of the Civil Procedure Rules. Ringera, J in the case of Re Global Tours & Travel Ltd HCWC No.43 of 2000 held thus:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

15. Contrary to the Respondents’ assertion, the Applicants appeal was lodged within the time required by law, having been lodged on 20th April, 2023 and the ruling appealed from delivered on 28th March, 2023.

16. The Applicants have however, not filed their record of appeal to date, even after lodging the appeal about seven months ago in April, 2023. This in my view confirms the assertion by the Respondents that the instant application is only intended to delay the hearing and determination of the suit before the lower.

17. In Kenya Wildlife Service –vs- James Mutembei [2019] eKLR the court held that: -“…Stay of proceeding should not be confused with stay of execution pending appeal. 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…”

18. In my view, staying of proceedings in Nyamira Employment and Labour Relations Cause No. E002 of 2023, would not be in the interest of justice, as to do so, will only serve the purpose of delaying the suit before the lower court to the detriment of the Respondents.

19. I further return that the Applicants have not satisfied this court that they have an arguable Appeal to warrant issuance of the orders sought.

20. The application is dismissed.

21. Costs shall abide the appeal.

22. Orders accordingly.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 9TH DAY OF NOVEMBER, 2023. CHRISTINE N. BAARIJUDGE