https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1137

SKK & 48 others v Finlays (Kenya) Ltd & 7 others (Civil Appeal (Application) E180 of 2025) [2026] KECA 1137 (KLR) (12 June 2026) (Reasons) Neutral citation: [2026] KECA 1137 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E180 of 2025 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between SKK & 48 others Appellant and Finlays (Kenya) Ltd 1st Respondent ETKP 2nd Respondent Ministry For Labour And Social Protection (The State Department For Labour) 3rd Respondent The Hon. Attorney General 4th Respondent and Federation Of Kenya Women Lawyers (Fida-Kenya) 1st Interested Party Kenya National Human Rights Commission 2nd Interested Party Kenya Plantation & Agricultural Workers Union 3rd Interested Party Rain Forest Alliance 4th Interested Party (Being an appeal from the judgment of the High Court of Kenya at Kericho (J. Sergon, J.) dated 20th September 2023 in Constitutional Petition No. 2 of 2023 Constitutional Petition 2 of 2023, Tribunal Case E002 of 2023 ) Reasons 1.On 11th March 2026, this Court dismissed the applicant’s application dated 15th January 2026 under Rule 34 (7) of the Court of Appeal Rules, 2022 and reserved the reasons for the decision. Pursuant to the said rule, these are the reasons for our decision. For the sake of clarity, it is important for us to clarify that this application was filed not by the applicant in this appeal, but by the 1st respondent, Finlays (Kenya) Ltd, (the 1st respondent in this appeal). The application is brought under Articles 48, 50, 159 (2) (d) of the Constitution and Rule 5 (2) (b) of the Court of Appeal Rules, 2022 and all other enabling provisions of the law. The appellants are seeking orders that:a.That this Honourable Court be pleased to grant a stay of proceedings in HIV & AIDS Tribunal cause E002/2023 SKK & 48 Others v J.L pending the hearing and determination of this appeal against the Ruling and Order of Kericho High Court Petition No. 2 of 2023 SK & 48 Others v Finlays Kenya Limited & Another & Federation of Kenya Women Lawyers & 3 Others.b.That this Honourable Court be pleased to grant a stay of proceedings in HIV & AIDS Tribunal Cause E002/2023 SKK & 48 Others v J.L pending the hearing and determination of the intended appeal by the 1st Respondent/Applicant in NairobI HCCA E1132 OF 2024 Liptons Teas and Infusions Kenya PLC and Liptons Teas and Infusions Kenya PLC Central Hospital vs SKK and Browns Investments PLC from the Judgement and Orders of Justice A. C. Mrima delivered on 30th September 2025.c.That the costs of this application be in the cause. 2.We have carefully read the grounds in support of the application, the replying affidavit and the parties’ submissions. However, before addressing our minds to merits or otherwise of the application, there are pertinent issues which owing to their nature and importance, we must address because they go deep into the substratum of the application. 3.The issues alluded to are straight forward and staring at the eyes of the Court begging for an early resolution. The first issue is a pertinent jurisdictional question which goes into the root of this application. At paragraph 10 of their submissions, the respondents’ counsel pointed out that the notice of appeal and memorandum of appeal annexed by the appellants’ supporting affidavit is for a totally different file. The applicant’s counsel did not address this issue at all. 4.This is a pertinent point of law which we cannot brush aside. We have carefully scrutinized the notice of appeal annexed to the applicant’s affidavit in support of the application. The parties in the notice of appeal are Liptons Teas and Infusion Kenya PLC, Liptons Teas and Infusions, Kenya PLC Central Hospital and Browns Investments PLC vs. SKK & 48 Others. These are not the parties in this case. Also, the High Court Case number in the purported notice of appeal is E1132 of 2024 consolidated with E1130 of 2024. That is not all, the said notice relates to a Milimani High Court case. The decision sought to be stayed in this application arises from Kericho High Court Petition No. 2 of 2023 SK & 48 Others vs. Finlays Kenya Limited & Another & Federation of Kenya Women Lawyers & 3 Others. Lastly, the purported notice of appeal clearly reads:“Take Notice that Browns Investments PLC, the 3rd appellant herein being dissatisfied with the judgment of Honourable Justice A. C. Murima given at Nairobi on 30th day of September 2025 intends to appeal to the Court of Appeal against the whole of the said decision…” 5.Clearly, the appellant in this appeal is not Browns Investments PLC. It is evident that there is no competent notice of appeal against the ruling issued by Sergon, J. on 20th September 2023 in Kericho High Court Petition No. 2 of 2023, SK & 48 Others vs. Finlays Kenya Limited & Ano. & Federation of Kenya Women Lawyers & 3 Others. It is an established position that a valid and competent notice of appeal is an absolute jurisdictional prerequisite before this Court can exercise its discretionary powers to grant interim reliefs under Rule 5 (2) (b) of the Court of Appeal Rules, 2022.Because the Court of Appeal's jurisdiction under Article 164 (3) of the Constitution is strictly appellate, it cannot entertain interlocutory applications such as stay of execution, stay of proceedings or injunctions unless it is formally seized of an "intended appeal" via a competent notice of appeal. Absent a competent notice, the application is deemed fatally incompetent and must be struck out for want of jurisdiction. 6.This Court in Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR, a foundational locus classicus decision regarding the court's jurisdiction under Rule 5 (2) (b) stated that the Court of Appeal cannot assume or exercise jurisdiction in an application under Rule 5 (2) (b) unless a competent notice of appeal has been filed. 7.In Mitsumi Computer Garage Ltd vs. Freight in Time Ltd & 4 Others (2026) KECA 246, this Court allowed a preliminary objection and struck out an application brought under Rule 5 (2) (b), declaring it incompetent because the anchoring notice of appeal was defective. This decision explicitly reaffirmed that this Court’s interlocutory jurisdiction presupposes the existence of a valid, competent and legally sound notice of appeal. An invalid notice divests the court of jurisdiction. In absence of a valid and competent notice of appeal, the prayer seeking to stay the ruling issued in the Ruling and Order of Kericho High Court Petition No. 2 of 2023 SK & 48 others vs. Finlays Kenya Limited & Ano. & Federation of Kenya Women Lawyers & 3 Others collapses. 8.The other defect ailing this application is that the applicant in the two prayers reproduced above is urging this Court to stay proceedings before the HIV & AIDS Tribunal. Under Article 164 (3) of the Constitution, the Court of Appeal is vested with jurisdiction to hear appeals strictly from the High Court and courts of equal status (the Employment and Labour Relations Court and the Environment and Land Court). Consequently, because an interlocutory application under Rule 5 (2) (b) requires a competent notice of appeal directly linking the Court of Appeal to the trial court's decision, the Court cannot "meddle" in or directly stay decisions from lower subordinate courts or tribunals. 9.This Court in Oscar Kipchumba Sudi vs. Ethics and Anti- Corruption Commission & 2 Others [2021] eKLR was emphatic that it lacks jurisdiction to issue Rule 5 (2) (b) orders regarding proceedings in subordinate courts. The court affirmed that its power to stay proceedings is tied to an appeal against a decision from a superior court not a magistrate's court. We can also add not a tribunal. Similarly, in Bernard Gichobi Njira vs. Kanini Njira Kathendu & Another [2016] eKLR, this Court reinforced that the Court of Appeal cannot directly interfere with decisions originating from subordinate courts, as such actions require an established appellate hierarchy. We have said enough to demonstrate that the plea that we stay proceedings before the HIV & AIDS Tribunal is hopelessly misconceived and totally unavailable from this Court. 10.Lastly, the applicant is inviting this Court to stay proceedings in HIV & AIDS Tribunal Cause E002/2023 SKK & 48 Others vs. J.L pending the hearing and determination of the intended appeal by the 1st respondent/applicant in Nairobi HCCA E1132 OF 2024 Liptons Teas and Infusions Kenya PLC and Liptons TEAS and Infusions Kenya PLC Central Hospital vs. Sammy Kiplangat Keter and Browns Investments PLC from the Judgement and Orders of Justice A. C. Mrima delivered on 30th September 2025. 11.As the above prayer clearly shows, the Applicant has the audacity to invite this Court to stay proceedings before the tribunal “pending the hearing and determination of a case pending in Nairobi High Court.” We honestly cannot comprehend the applicant’s intention. We fail to understand how an advocate can make such mistakes and more so, in the Court of Appeal. We must underscore that pleadings are the bedrock of any civil litigation. Therefore, litigants must be meticulous and thorough when drafting them. Pleadings must communicate the parties’ case clearly. The manner in which this application was drafted is extremely worrying. No judge likes dismissing a case. But there are certain cases where dismissal is the only remedy available from the Court. This application reminds us of Lord Brandon's precise authoritative statement in the House of Lords decision in Rhesa Shipping Co SA vs. Edmunds (The Popi M) [1985] 1 WLR 948 at 955 (though in the context of burden of proof resulting in a dismissal) where he stated:“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take." 12.By now it is manifestly clear that the inevitable conclusion is that the applicant’s application dated 15th January 2026 was devoid of merit, it lacks legs to stand on and it could only attract one remedy, dismissal, hence the reasons why we dismissed it under Rule 34. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. MATIVO................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.