[2023] KECA 1034 (KLR)
The Court of Appeal found that the appeal was arguable, particularly on the question of whether the dispute was subject to an arbitration clause and whether the trial court had jurisdiction. The Court held that if the stay was not granted, the proceedings in the Employment and Labour Relations Court could proceed to...
Source-derived case information.
- Citation
- [2023] KECA 1034 (KLR)
- Parties
- Applicant: Total Kenya PLC; Respondent: David Kamau Ngure
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E071 of 2022
- Procedural Posture
- Civil Appeal / Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed.
- Judges
- DK Musinga, KI Laibuta, PM Gachoka
- Legal Topics
- Arbitration Clauses, Stay of Proceedings, Jurisdiction of Court, Unfair Termination, Referral to Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Total Kenya PLC
Applicant
David Kamau Ngure
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the proceedings in the Employment and Labour Relations Court should be stayed pending appeal.
- 2 Whether the dispute between the parties is subject to an arbitration clause.
- 3 Whether failure to stay proceedings would render the appeal nugatory.
Ratio Decidendi
The Court of Appeal found that the appeal was arguable, particularly on the question of whether the dispute was subject to an arbitration clause and whether the trial court had jurisdiction. The Court held that if the stay was not granted, the proceedings in the Employment and Labour Relations Court could proceed to conclusion, thereby rendering the appeal nugatory if it succeeded. The Court emphasized the importance of jurisdiction and the need to avoid wasting judicial time on proceedings that may ultimately be found to have been conducted without jurisdiction. Accordingly, the Court allowed the application for stay of proceedings pending the hearing and determination of the appeal, and...
Court Disposition
Application for stay of proceedings allowed.
Orders
- Stay of proceedings in ELRC Cause No E6462 of 2021 granted pending hearing and determination of the appeal.
- The appeal to be heard and finalized on a priority basis within six months from the date of this ruling.
Full Case Text
Judgment text and source record
28 paragraphs
Total Kenya PLC v Ngure (Civil Appeal (Application) E071 of 2022) [2023] KECA 1034 (KLR) (4 August 2023) (Ruling)
Neutral citation: [2023] KECA 1034 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) E071 of 2022
DK Musinga, KI Laibuta & PM Gachoka, JJA
August 4, 2023
Between
Total Kenya PLC
Applicant
and
David Kamau Ngure
Respondent
(Being an appeal from the Ruling of the Employment and Labour Relations Court at Nairobi (M. Onyango, J.) delivered on 19th November 2021 in E.L.R.C CAUSE NO. E6462 OF 2020 Cause E6462 of 2020 )
Ruling
1. By way of a notice of motion dated October 11, 2022, the Total Kenya PLC, the appellant/applicant herein seeks an order of stay of proceedings in ELRC Cause No E6462 of 2021, David Kamau Ngure v Total Kenya, PLC, pending the hearing and determination of this appeal.
2. The background of the said application is that by a Plaint dated November 16, 2021, the respondent commenced proceedings against the appellant in the Employment and Labour Relations Court (ELRC) citing, inter alia unfair termination of employment. The appellant/applicant filed an application dated January 29, 2021 seeking to have the proceedings stayed and the matter referred to arbitration,citing the provisions of section 6 of the Arbitration Act as read together with the dispute resolution clause VIII of the Young Dealer Marketing Licence Agreement dated February 23, 2018 as read with the respondent’s letter of appointment dated 15th June 2017.
3. On November 19, 2021, the trial court dismissed the said application with costs. Being aggrieved by that ruling, the appellant instituted an appeal to this Court.
4. In an affidavit sworn by Rosemary Wakaba, the appellant/applicant’s legal officer, the appellant/applicant believes that its appeal is arguable and has cited various grounds among them being that: the learned judge erred in law in failing to determine whether the issues in dispute are subject to the arbitration clause; that the learned judge erred in law in holding that the parties had not defined the questions to be referred to arbitration, and that the learned judge erred in law in dismissing the application seeking to refer the matter to arbitration.
5. The appellant/applicant further stated that unless this Court stays the proceedings as sought, the appeal if successful, could be rendered nugatory because the ruling from which the appellant/applicant appeals from touches on the jurisdiction of the trial court to hear and determine the claim before it and that unless the orders sought are granted, the proceedings before the trial court will go on and the appellant/applicant shall be compelled to file a defence contrary to the provisions of section 6 of the Arbitration Act, thus subjecting itself to the jurisdiction of the trial court.
6. When the application came up for hearing on December 14, 2022, there was no appearance for the appellant/applicant despite service of a hearing notice on 11th December 2022 by way of an email. The appellant/applicant have however filed submissions dated October 26, 2022 and a digest of authorities.
7. Mr Maina, appeared for the respondents and sought to rely on his client’s replying affidavit and submissions dated October 31, 2022 without any oral highlights.
8. We have considered the application and submissions filed by both parties as well as the digest of authorities on record. In an application of this nature, it is trite law that an appellant/ applicant has to satisfy the court that the appeal is arguable and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory. See Safaricom PLC vs Multi Choice Kenya Limited & 3 Others, [2021] eKLR.
9. Looking at the opposed grounds of appeal, we are satisfied that the appeal is arguable.
10. On the nugatory aspect, it is not in dispute that the appeal touches on the jurisdiction of the trial court to hear and determine the claim before it. It has been held, time and again, that jurisdiction is everything, without it a court ought not to conduct any proceedings before it. See the locus classicus on the issue of jurisdiction in the celebrated case of Owners of Motor Vessel ‘Lillian S’ vs. Caltex Oil (Kenya) Limited[1989] KLR 1.
11. If we do not grant the order for stay of proceedings, and the appeal succeeds, the proceedings before the trial court shall be in vain and that will amount to waste of precious judicial time. The proceedings may even have been finalized by the time the appeal is heard and determined. That, in our view, will render the appeal nugatory.
12. For that reason, we are inclined to allow this application which we hereby do. We however, direct that this appeal be heard and finalized on priority basis and in any event within the next six (6) months from the date of delivery of this ruling. The costs of the application shall be in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 4TH DAY AUGUST, 2023. D. K. MUSINGA (P).........................................JUDGE OF APPEALDR. K. I. LAIBUTA.........................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb.........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR