https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1435

Kenya Union of Commercial Food and Allied Workers v Bowip Agencies Limited (Cause E016 of 2025) [2026] KEELRC 1435 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1435 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Cause E016 of 2025 Nzioki wa Makau, J May 26, 2026 Between Kenya Union of Commercial Food And Allied Workers Claimant and Bowip Agencies Limited Respondent Ruling 1.Against the backdrop of this Court entering judgment in favour of the Claimant on 29th July 2025 and the Respondent filing a notice of appeal against the said judgment dated 13th July 2025, the Claimant has filed the present application dated 27th January 2026 seeking the following orders:1.Spent2.That this Court be pleased to withdraw the Notice of Appeal dated and lodged on 13th August 2025, for failure to comply with Rule 83 of the Rules of this court.3.That costs be awarded to the Applicant. 2.In support of the application are the grounds on its face and the supporting affidavit of Mr. Benjamin Tangara the Claimant’s Branch Secretary. It is contended that although this Court, on 5th November 2025, granted the Respondent an order of stay of execution pending the hearing of the intended appeal founded on the Notice of Appeal dated 13th August 2025, the Respondent has to date not filed the appeal. In view of the foregoing the deponent asserts that the Respondent has squandered its right of appeal given the inordinate delay in lodging the same. The Claimant therefore urges the Court to allow the application asserting that the appeal is merely a ploy to deny it the fruits of its judgment. 3.The application was opposed through a replying affidavit sworn on 16th March 2026 by Mr. Benjamin Omole, a director of the Respondent. He deposes that the application is misconceived, amounts to an abuse of the court process, and is founded on inaccurate facts. He avers that contrary to the Claimant’s assertions, the appeal had in fact been lodged on 4th November 2025 under Citation No. Court of Appeal Civil Appeal No. E240 of 2025; Bowip Agencies Limited v Kenya Union of Commercial Food and Allied Workers, and therefore no inordinate delay arose. He further contends that this Court is functus officio and consequently lacks jurisdiction to grant the orders sought. According to the deponent, the invocation of the Appellate Jurisdiction Act and the Court of Appeal Rules before this Court is untenable since those provisions govern proceedings before the Court of Appeal and not proceedings before the trial court. 4.The application was canvassed by way of written submissions. Claimant’s Submissions 5.The Claimant submits that even assuming an appeal had indeed been filed as alleged by the Respondent, such appeal remains defective for want of service contrary to Rule 92(1) of the Court of Appeal Rules. In support of this position, reliance is placed on Karurie v Kamau (Civil Appeal (Application) E134 of 2021) [2025] KECA 366 (KLR), where Jamila Mohammed JA observed as follows:“The prevailing circumstances call for the exercise of a balancing act between the Applicant's right to enjoy the fruits of his judgement and the respondent's right to appeal. Considering that there is no evidence of service of the record of appeal on counsel for the applicant, we find that the scales of justice tilt in favour of the applicant". 6.The Claimant further submits that if at all the Record and Memorandum of Appeal were filed then they were filed out of time, without leave of court. It therefore asserts that the only inference that can be drawn from such conduct is that the Respondent lost interest in the appeal hence the Notice of Appeal should be withdrawn to enable the Claimant enjoy the fruits of judgment. Respondent’s Submissions 7.In response, the Respondent identifies two issues for determination, namely:a.whether the application is proper; andb.whether this Court is functus officio. 8.On the propriety of the application the Respondent submits that it is improper and incompetent for having been founded on the provisions of the Appellate Jurisdiction Act and the Court of Appeal Rules, 2022, which regulate proceedings before the Court of Appeal and not proceedings before this Court. It submits that the orders sought by the Claimant, particularly the prayer seeking withdrawal of the Notice of Appeal pursuant to Rule 83 of the Court of Appeal Rules, are misconceived. The Respondent asserts that Rule 83 concerns voluntary withdrawal of a notice of appeal by a party and does not support the relief sought by the Applicant. It further submits that parties are bound by their pleadings and that the provisions relied upon have no applicability to proceedings before the Employment and Labour Relations Court, which is governed by the ELRC Procedure Rules. Accordingly, the Respondent contends that the application is incompetent and ought to be dismissed. 9.On the second issue the Respondent submits that this Court is functus officio, having already rendered judgment and subsequently determined the application for stay of execution pending appeal. It asserts that all duties of the Court in the matter have been discharged and that any grievances arising thereafter fall within the jurisdiction of the Court of Appeal. In support of this position, reliance is placed on the decision in the case of Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR, where the Court of Appeal held that once a court reaches finality in proceedings and renders its determination, it becomes functus officio and any further grievance can only be pursued through the appellate process. It also cites the case of Kenya Union of Commecial Food & Allied Workers v Keroche Industries Ltd & 2 others (Cause 772 of 2010) [2013] KEIC 564 (KLR), where the Court held that upon granting stay pending appeal, it became functus officio save for matters relating to taxation and execution, and that issues touching on compliance with the Court of Appeal Rules could only be addressed before the Court of Appeal. Further reliance is placed on Union of National Research & Allied Institutes Staff of Kenya v National Museums of Kenya; Kenya Union of Commercial, Food and Allied Workers (Interested Party) (Cause E641 of 2022) [2025] KEELRC 1350 (KLR), where the Court held that after rendering its decision it became functus officio and lacked jurisdiction to entertain issues concerning notices of appeal and appeals filed out of time, those matters being reserved for determination by the Court of Appeal. 10.The Respondent additionally cites the case of Sigei v Unilever Tea Kenya Limited (Cause 42 of 2019) [2025] KEELRC 391 (KLR), where the Court held:“But the Intended Appeal is on a decision from this Court, to the Court of Appeal, and the applicable Rules on the Record of Appeal, are the Procedural Rules governing the Court of Appeal. The role of the trial Court is limited. There is therefore not much assistance in terms of judicial intervention, that the E&LRC can extend to the Parties……It most definitely cannot strike out the Notice of Appeal, or deem the same to have been withdrawn. It cannot revisit the order of stay of execution which was procured consensually by the Parties. Rules 85 and 86 of the Court of Appeal Rules, would perhaps enable the Claimant to move that Court, to declare the Notice of Appeal as withdrawn, or to strike out the Notice of Appeal, on the ground that the Respondent has failed to take some essential steps, in pursuit of the Intended Appeal. The E&LRC does not have jurisdiction to deem the Notice of Appeal to have been withdrawn, or to strike out the Notice. Jurisdiction is effectively with the Court of Appeal, once the Notice of Appeal was filed.” 11.On the basis of the foregoing, the Respondent submits that this Court lacks jurisdiction to entertain the application, as the appeal has already been initiated before the Court of Appeal. Consequently, it is urged that the application is devoid of merit and should be dismissed with costs. Disposition 12.The issue for determination herein is simple. Is this Court functus officio or not; and if it is not functus officio, what remedies lie? A positive answer to the first question will obviate the need to consider the secondary aspect since there would be no relief to grant. The dispute between the parties was determined by this Court in a judgment and subsequently there was an appeal preferred. This Court is functus officio in as far as the dispute goes. The Claimant presently can only challenge the notice of appeal before the Court of Appeal and not this Court. This Court cannot strike out the notice of appeal as it is functus officio. As the trial court, the only thing left for the Court is to take the directions the Court of Appeal will issue on the appeal before that court and may even tax or rehear the matter depending on the outcome at the Court of Appeal. It is not within the province of this Court to evaluate the progress before the Court of Appeal. This application lacks merit and is dismissed with costs to the Respondent.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 26TH DAY OF MAY 2026NZIOKI wa MAKAU, MCIArb.JUDGE