[2015] KEELRC 1114 (KLR)
The court held that it was functus officio after delivering its judgment on 19th September 2014, and with the notice of appeal having been struck out by the Court of Appeal for late filing, there was no valid appeal pending. As such, the Employment and Labour Relations Court lacked jurisdiction to entertain the...
Source-derived case information.
- Citation
- [2015] KEELRC 1114 (KLR)
- Parties
- Applicant: Joseph Mutuura Mbeeria; Applicant: Naftaly Rugara Muiga; Respondent: The Cabinet Secretary for Education Science and Technology; Respondent: The Hon. Attorney General; Applicant: The Council of Jomo Kenyatta University of Agriculture & Technology
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 33 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Reference in Court of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Functus Officio, Appeal Procedure, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutuura Mbeeria
Applicant
Naftaly Rugara Muiga
Applicant
The Cabinet Secretary for Education Science and Technology
Respondent
The Hon. Attorney General
Respondent
The Council of Jomo Kenyatta University of Agriculture & Technology
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Reference in Court of Appeal
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to grant a stay of execution after the Court of Appeal has struck out the notice of appeal for late filing.
- 2 Whether the court is functus officio after delivery of its judgment and absence of a valid appeal.
- 3 Whether the applicant is entitled to a stay of execution pending determination of a reference in the Court of Appeal.
Ratio Decidendi
The court held that it was functus officio after delivering its judgment on 19th September 2014, and with the notice of appeal having been struck out by the Court of Appeal for late filing, there was no valid appeal pending. As such, the Employment and Labour Relations Court lacked jurisdiction to entertain the application for stay of execution. The proper forum for seeking a stay pending the determination of the reference was the Court of Appeal, particularly before the judge who dismissed the application for extension of time. The application for stay of execution was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
PETITION NO 33 OF 2013
JOSEPH MUTUURA MBEERIA ………...………………1ST PETITIONER
NAFTALY RUGARA MUIGA ………….......…………….2ND PETITIONER
VERSUS
THE CABINET SECRETARY FOR................
EDUCATION SCIENCE AND TECHNOLOGY......……1ST RESPONDENT
THE HON. ATTORNEY GENERAL……….....………..2ND RESPONDENT
AND
THE COUNCIL OF JOMO KENYATTA
UNIVERSITY OF AGRICULTURE
& TECHNOLOGY ................................INTERESTED PARTY/APPLICANT
Mr. Oluoch Olunya with B. G. Kariuki for Applicant/Interested Party
Mr Muigai for Petitioners/Respondents
M/s Chesire for Attorney General
RULING
1. The Notice of Motion Application was filed on 12th March, 2015 seeking for stay of execution of the Judgement and consequentioal orders delivered on 19th day of September 2014, pending the hearing and determination of the reference.
2. The Application is founded on the grounds set out in paragraphs 1 – 10 of the Notice of Motion and supported by an Affidavit of Mr Oluoch Olunya Advocate for the Applicants.
3. The Application is opposed and a Notice of preliminary objection was filed by Mr Musyoka Muigai for the petitioners.
4. The nub of the Application is that the Applicant having filed an application for stay of execution pending appeal, it transpired at the Court of Appeal that the notice of Appeal was filed out of time culminating in an application for extension of time to file notice of appeal in the court of appeal.
5. The Application in the court of appeal was handled by a single Judge and ruling was issued dismissing the Application for extension of time.
6. Dissatisfied with the Court of Appeal’s ruling, the Applicant has lodged a reference in the Court of Appeal of Kenya at Nairobi.
7. This Court having been notified of the development at the Court of appeal, discharged the Interim Orders on 3rd November, 2014 hence this application for stay of execution pending the reference in the Court of Appeal
8. This is a novel application. The fact of the matter is that once the Court of Appeal struck off the notice of Appeal for late filing this court could no longer legitimately deal with the matter of stay of execution of the judgment of this court delivered on 19th September, 2014.
9. It is from the Court of Appeal Judge who dismissed the Application for extension of time, the Applicant could seek stay of the ruling pending the hearing and determination of the reference.
10. This court is functus officio and downed its tools upon delivery of its judgement, there being no valid Appeal pending against the same.
11. The Application is dismissed with costs.
Dated and Delivered at Nairobi this 15th day of May 2015
MATHEWS N. NDUMA
PRINCIPAL JUDGE