[2018] KEELRC 2457 (KLR)
The court held that it lacked jurisdiction to review its own order granting stay of execution after a notice of appeal had been filed. The filing of the notice of appeal rendered the court functus officio, meaning it could not revisit or alter its previous orders. The applicant's remedy, if dissatisfied with the...
Source-derived case information.
- Citation
- [2018] KEELRC 2457 (KLR)
- Parties
- Applicant: Republic; Respondent: The Industrial Court (as established under the Labour Institutions Act No. 12 of 2007); Respondent: Attorney General; Applicant: James Machuka; Respondent: Industrial & Commercial Development Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 16 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Stay Order
- Outcome
- application dismissed with costs
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Stay of Execution, Review of Court Orders, Functus Officio, Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Industrial Court (as established under the Labour Institutions Act No. 12 of 2007)
Respondent
Attorney General
Respondent
James Machuka
Applicant
Industrial & Commercial Development Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Stay Order
Legal Issues
- 1 Whether the court has jurisdiction to review its own order granting stay of execution after a notice of appeal has been filed.
- 2 Whether the deposited funds should be released to the applicant/interested party on the ground that the appeal was not filed within the stipulated time.
Ratio Decidendi
The court held that it lacked jurisdiction to review its own order granting stay of execution after a notice of appeal had been filed. The filing of the notice of appeal rendered the court functus officio, meaning it could not revisit or alter its previous orders. The applicant's remedy, if dissatisfied with the conduct of the appeal, lay with the Court of Appeal, not with the trial court. Therefore, the application for review and release of the deposited funds was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
- The deposited funds shall not be released as sought by the applicant/interested party.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO.16 OF 2012
(Before Hon. Justice Mathews N. Nduma)
REPUBLIC .............................................................................APPLICANT
VERSUS
THE INDUSTRIAL COURT (AS ESTABLISHEDUNDER THE LABOUR
INSTITUTIONS ACTNO. 12 OF 2007) ……….... 1ST RESPONDENT
ATTORNEY GENERAL………...……………......…. 2ND RESPONDENT
AND
JAMES MACHUKA……..................APPLICANT/INTERESTED PARTY
EX-PARTE
INDUSTRIAL & COMMERCIAL DEVELOPMENT
CORPORATION…........………RESPONDENT/EX-PARTE APPLICANT
RULING
1. The court made the following order on 24th February, 2015.
“That stay be and is hereby allowed pending appeal on condition that the applicant deposit in court Kshs.3,045,165 within 30 days in default execution to issue”
2. The order was complied with by the Respondent.
3. The Applicant/Interested party, seeks the court to review its order and release the deposited funds on the ground, that the appeal was not filed within the stipulated time.
4. Once a Notice of Appeal has been filed, which is the case in the present matter, the trial court has no jurisdiction to revisit the matter again. It is functus officio. The Notice of Appeal ws filed six days after judgment was delivered on 11/12/2014.
5. In the case of Jane Anyona Omutsani v Nasibi Aore (2015) eKLR, Justice E. Obaga held;
“I have considered the applicant’s application and the issue for determination is whether a court which has granted stay of execution pending appeal to a higher court can be asked to review its decision. When the respondent came to court seeking stay of execution, he demonstrated to court that he had filed a notice of appeal and he met the conditions for grant of stay pending appeal. Under rule 6(4) of the Civil Procedure Rules it is provided that for purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court, notice of appeal has been given. In the present case, the respondent had filed a notice of appeal which was issued under the rules of Court of Appeal. It therefore follows that he had filed an appeal to the Court of Appeal. If the Respondent has failed to serve the appeal documents as required or if he has failed to have his appeal fixed for hearing, the applicant cannot come to this court seeking to have the stay orders reviewed or set aside. The applicant has an avenue of moving the Court of Appeal to have the notice struck out or the appeal itself dismissed for want of prosecution. She cannot move this court to set aside the stay orders.”
6. For the above reasons the application for review lacks merit and is dismissed with costs.
Dated and Signed in Kisumu this 1st day of February, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 16th day of February, 2018
Maureen Onyango
Judge
Appearances
Nyabena for Applicant/Interested Party
Mr. Obura for Respondent/Exparte Applicant
Anne Njung’e – Court Clerk