[2024] KEELRC 13233 (KLR)

Kenya Defence Forces & 2 others v Munene (Civil Appeal E257 of 2023) [2024] KEELRC 13233 (KLR) (25 November 2024) (Ruling)

Neutral citation: [2024] KEELRC 13233 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Civil Appeal E257 of 2023

JW Keli, J

November 25, 2024

Between

Kenya Defence Forces

1st Appellant

Kenya Defence Forces Council

2nd Appellant

The Attorney General

3rd Appellant

and

David Munene

Respondent

(APPLICATION FOR STAY OF PROCEEDINGS PENDING HEARING AND DETERMINATION OF INTENDED APPEAL)

Ruling

1. The appellants having filed appeal against the Ruling of Hon. R L Musiega, Senior Resident Magistrate delivered on 8th December 2023 in Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces,Kenya Defence, filed the instant application under Article 50 of the Constitution of Kenya 2010, Sections 3& 20(1)of the Employment and Labour Relations Court Cap 234B, Sections 1A, 3A and 63(e) of the Civil Procedure Act, cap 21 of the Laws of Kenya, Rule 8(1) & 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, and all other enabling provisions of the law) seeking the following Orders:-a.That this Honourable Court be pleased to order a stay of proceedings in Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces,Kenya Defence Council and the Attorney General pending the hearing and determination of the intended Appeal.b.That costs be in the cause.

Grounds of the application 2. On 8th December 2023, the learned Honourable R L Musiega, Senior Resident Magistrate delivered a Ruling in Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces,Kenya Defence Council and the Attorney General against the Applicants/Intended Appellants Notice of Motion dated 13th March 2023,seeking inter alia:a.Spentb.That the Honourable Court be pleased to find the Claimant/Respondent therein guilty of laches.c.That the Honourable Court be pleased to find that the Claimant/Respondent has not exhausted the administrative mechanism provided for under the National Legislation prior to the institution of the Petition herein.d.That the Honourable Court be pleased to find that the evidence that would ultimately determine the Claim herein has not been placed before the Honourable court by the Claimant/Respondent and the Claimant's assertion that the Respondents/Applicants have violated the laws of the land is merely speculative.e.That the Honourable Court be pleased to find that the procedural infraction and non-compliance with the attendant statutory and regulatory legal framework by the Petitioner/Respondent violates laid down administrative procedures anchored in the Constitution of Kenya 2010. f.That the Honourable Court be pleased to find that the labour grievance as presented by the Claimant/Respondent is not for the direct route to the honourable court.g.That the Honourable Court be pleased to find that the Claimant/Respondent failed to approach this court for an order of discovery pursuant Order 11 rule 3 sub rule 2(d) of the Civil Procedure rules 2010 and subsequently enter a finding that the documentary evidence adduced by the Claimant/Respondent amounts to illegally obtained evidence and the same be expunged from the court record.h.That subsequent to Order (g) therein, the Honourable Court be pleased to find that the Claim suffers paucity of evidence.i.That the Honourable Court be pleased to find that it lacks jurisdiction to entertain the Claim therein.j.That this Honourable Court be pleased to strike out and/or dismiss the Claim therein in its entiretyk.That costs of this Application be provided for.

Other grounds of the application 3. The applicants stated that dissatisfied with the said Ruling, the Applicants filed and served a Memorandum of Appeal dated 13th December 2023 together with a request for certified typed proceedings, ruling and court order to enable them prepare and file the record of appeal.

4. That pending issuance of the typed proceedings to enable the Applicants/Intended Appellants mount an appeal, the learned trial Magistrate has fixed Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces, Kenya Defence Council and the Attorney General for hearing on 1st October 2024.

5. That previously the case in Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces, Kenya Defence Council and the Attorney General had been reserved for hearing on 23rd April 2024 when the hearing aborted for non-attendance of the Claimant.

6. That the Applicants have not been able to file the Intended Appeal since they are still waiting to be supplied with, certified typed proceedings, ruling and court order, despite-/numerous requests, to enable them prepare and file the record of appeal.

7. The intended Appeal is meritorious since it raises substantial issues of law for hearing and determination with high degree of success. The Intended Appeal will be rendered nugatory and further be prejudicial to the Applicant/Intended Appellant if the Orders sought are not granted.

8. The Respondents would not suffer any prejudice that cannot be compensated by damages if this Application is allowed and Orders granted. In the interest of justice and fairness therefore the Application be allowed pending the hearing and determination of the intended appeal herein. It is in the interests of justice that the application be allowed as prayed and further no prejudice will be occasioned on the Respondents.

9. The Application was further grounded on the annexed supporting Affidavit of R. A. Nyonje which the court finds duplicated the grounds outlined above in the application.

Response 10. The Respondent filed his replying affidavit dated 29th July 2024 in opposition to the application. In a nutshell the respondent stated that the application leading to the impugned ruling was filed 4 years after institution of the suit. That the application lacks merit and appears to be another calculated attempt by the Appellants to further delay the just and expeditious resolution of the suit, to his detriment. The Respondent attributed delay in the conclusion of the suit to delay tactics of the Respondent.

Written submissions 11. The application was canvassed by way of written submissions. The applicants’ written submissions were dated 6th August 2024 and drawn by V G Kabi State Counsel, of the Hon. Attorney General Office. The Respondent’s written submissions were drawn by Swaka Advocates and dated 16th October 2024.

Decision. 12. The issue to be addressed in the application was whether the application for stay of proceedings of the lower court pending hearing and determination of the appeal was merited. The court perused the pleadings of the parties, the memorandum of appeal and the written submissions and read the cited authorities therein.

13. The applicants relied on decision of the Court of Appeal in Center Star Limited & Hussein Hassan Bood v Halima Mahmood Ali (suing in her capacity as legal representative of the Estate of Hawa Hassan Mohamud), Amal Plaza Limited & Nuh Abdille Hassan [2018] KECA 433 (KLR) where the Court allowed an application for stay of proceedings of the lower court on basis that the subject matter of appeal would be rendered nugatory by the time the appeal was heard. The applicant relied on other several authorities which the court perused.

14. The Respondent submitted on the threshold of granting a stay of proceedings as held by the High Court in Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) while making reference to William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR where the court laid down the principles that ought to be met for a stay in proceedings. In the matter the court stated that; “In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings, authoritatively laid out the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR: They laid down the following six principles: a. First, there must be an appeal pending before the higher Court; b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. 22. What emerges from the discussion above is that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy. 23. As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”

15. On whether there is an appeal pending before the higher court the Respondent submitted that, in this instant case, it is uncertain whether the memorandum of appeal that was filed by the Appellants was the appeal upon which they intended to rely upon or if it was a dummy appeal filed to enable them to acquire a case number and as such be deemed to have been filed within the required time limitation. That, such confusion is born from the averment of the applicants at paragraph 6 of their supporting affidavit which states that, “the applicant / intended appellant has not been able to file the intended appeal since they are still waiting to be supplied with certified typed proceedings, certified typed ruling and court order by the executive officer, Milimani Chief Magistrate Court”. That this averment raises serious doubts as to the existence of a valid appeal. If the applicants themselves concede that the intended appeal has not been filed due to the unavailability of the necessary documentation, it follows that the memorandum of the appeal currently on record may have been lodged merely to circumvent, particularly the statutory time limits for filing appeals. The averments of the applicants therein create a distinct possibility that the memorandum of appeal was not filed in good faith but merely as a tactical manoeuvre to obstruct the proceedings before the trial court. That the applicants seem to have used the filed memorandum of appeal as a tool to delay or suspend the lower court’s proceedings when it suited their interests, knowing full well that no substantive appeal would follow.

16. The Respondent submits that the foregoing is an abuse of the court process. That Courts must frown upon parties who weaponize the appeal process to derail or frustrate the administration of justice. Filing a memorandum of appeal without genuine intention to prosecute the same amounts to misconduct, which this Honourable Court must not condone. The appellants’ own admission in paragraph 6 of their supporting affidavit, where they concede that the intended appeal has not been filed because they are still waiting for certified proceedings, further confirms the absence of a legitimate appeal.

17. The applicants seek a stay of proceedings of the Trial Magistrate Court pending the hearing and determination of the appeal. The court returns that the deponent Nyonje was mistaken on the true position on the appeal as this court is a court of record. The court holds that a memorandum of appeal dated 13th December 2023 was filed on time. The appeal is on an interlocutory ruling on the question of jurisdiction. The Court finds that the only condition for the Court to satisfy itself is whether there is an arguable appeal brought without inordinate delay. The Court of Appeal in Rhoda Mukuma v John Abuoga[1988] eKLR, held that “It was laid down in Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (following Wilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the Court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.’’(Emphasis added). I uphold the decision to apply in the instant application and grant the applicants the opportunity to exercise their right of appeal on the ruling and hereby Order a stay of the proceedings at the lower court so that the outcome of the appeal is not rendered nugatory.

18. The Court took into consideration the concerns raised by the Respondent of prolonged delay in the conclusion of the suit before the trial court. The court in the circumstances allows the application and orders stay of the proceedings in Milimani MC. ELRC 558 of 2019 David Munene vs Kenya Defence Forces,Kenya Defence Council and the Attorney General pending the hearing and determination of the Appeal. The Order of stay of proceedings is issued conditional to the filing of the record of appeal within 30 days of this Order failing which the appeal will be dismissed unless sufficient reasons are advanced. Costs in the cause.

19. Mention on the 16th of January 2025 to confirm filing of record of appeal and for further directions/orders.

20. It is so Ordered.

READ, DELIVERED AND SIGNED IN OPEN COURT AT NAIROBI THIS 25th DAY OF NOVEMBER, 2024. JEMIMAH KELIJUDGEIn The Presence Of:C/A- CalebThe Appellants/Applicants :- KabiRespondent – Kamau h/b Swaka