[2022] KEELRC 431 (KLR)
The Employment and Labour Relations Court found that it lacked jurisdiction to enlarge time for filing an appeal in circumstances where an appeal on the same subject matter was already pending before the High Court. The court emphasized that the proper forum to determine the fate of the pending appeal or to transfer...
Source-derived case information.
- Citation
- [2022] KEELRC 431 (KLR)
- Parties
- Applicant: Veew Distributors Limited; Respondent: Fred Musembi Mueni
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Appeal E005 of 2022
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Jurisdiction of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veew Distributors Limited
Applicant
Fred Musembi Mueni
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to grant leave to appeal out of time when a parallel appeal is pending before the High Court.
- 2 Whether the application for stay of execution and leave to appeal out of time constitutes an abuse of court process.
Ratio Decidendi
The Employment and Labour Relations Court found that it lacked jurisdiction to enlarge time for filing an appeal in circumstances where an appeal on the same subject matter was already pending before the High Court. The court emphasized that the proper forum to determine the fate of the pending appeal or to transfer it to the appropriate court was the High Court itself, which was already seized of the matter. The court further held that the applicant's conduct in filing multiple applications and appeals on the same issue amounted to an abuse of the court process, as it was intended to delay execution and deny the respondent the benefit of the judgment. Consequently, the application was...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC APPEAL N0. E005 OF 2022
VEEW DISTRIBUTORS LIMITED.............................................................CLAIMANT
VERSUS
FRED MUSEMBI MUENI........................................................................RESPONDENT
RULING
1. Application dated 13th January, 2022 seeks an order in the following terms:-
1. Spent
2. Spent
3. THATthe Honourable Court be pleased to grant a stay ofexecution as against the Judgment of the Nairobi Chief Magistrate’s Court to wit;Nairobi CMEL No. 21 49 of 2019 – Fred Musembi Mueni –vs- Veew Distributors Limited,pending the hearing and determination of the present Application.
4. THAT the Honourable Court be pleased to allow the intended Appeal to be filed out of time.
5. THAT the Honourable Court be at liberty to make such orders as it may deem fit and just to award.
6. THAT costs of the Application be provided for.
2. The application is premised on grounds set out on the face of the application and in the supporting affidavit of the advocate handling the matter for the applicant the nub of which is that judgment was entered against the applicant in CMEL No. 2149 of 2019 – Fred Musembi Mueni –vs- Veew Distributors Limited.
3. That the applicant erroneously filed an appeal at the High Court instead of filing same with Employment and Labour Relations Court (ELRC) being High Court Civil Appeal No. 700 of 2021.
4. That the respondent filed a Preliminary Objection at the High Court on the jurisdiction of the Court which is pending.
5. That the applicant is keen on prosecuting the Appeal and that the Court grants the orders sought.
6. The application is opposed by a replying affidavit of the respondent stating that judgment was delivered in the Magistrate’s Court on 24th September, 2021 and the applicant was granted 30 days stay to organize payment of the decretal amount.
7. That when stay period lapsed, the applicant filed Milimani High Court Civil Appeal No. E700 of 2021 and an application for stay of execution and the applicant was granted 30 days stay.
8. That respondent filed Preliminary Objection and the applicant has since filed this case.
9. That the applicant is simply dragging the matter in Court to forestall execution and/or deny the respondent the opportunity to enjoy the fruits of his judgment.
10. That the application is an abuse of the Court process and it be dismissed.
Determination
11. The Preliminary Objection at the High Court is still pending and the HCCA Appeal No. 700 of 2021 is still pending at the High Court and has not been determined and/ or transferred to this Court by the High Court.
12. Clearly, it is the Court seized with the matter to decide to proceed with the hearing and determination of the same and/or transfer the same to this Court.
13. This Court lacks jurisdiction to enlarge time for a second appeal to be filed in this Court whilst there is another appeal on the same subject matter pending at the High Court.
14. This application is misconceived and an abuse of Court process and the same is dismissed with costs.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 17TH DAY OF MARCH, 2022.
MATHEWS N. NDUMA
JUDGE
Appearances
Mr. Mwaniki for Applciant
Mr. Onyango for Respondent
Ekale – Court Assistant.