[2021] KEELRC 1603 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

APPEAL NO. 4 OF 2019

(Originally Kakamega High Court Civil Appeal No. 129 of 2018)

WEST KENYA SUGAR CO LTD.........................APPELLANT

v

TITO LUCHELI TANGALE..............................RESPONDENT

BETWEEN

TITO LUCHELI TANGALE....................................PLAINTIFF

v

WEST KENYA SUGAR CO LTD.....................RESPONDENT

(Being an Appeal from the Ruling and order of Hon. Senior Resident Magistrate E. Muleka delivered on 13/9/2018 in

Butali PMCC No. 97 of 2017 between Tito Lucheli Tangale v West Kenya Sugar Co. Ltd)

RULING

1. On 23 March 2021, the Court dismissed an Appeal wherein Western Kenya Sugar Co. Ltd (the applicant) had sought to overturn a decision by the Butali Magistrates Court that he had jurisdiction over Work Injury Benefits Act claims.

2. The applicant was dissatisfied, and it filed a Notice of Appeal against the judgment on 26 March 2021.

3. The applicant has now followed the Notice of Appeal with a Motion dated 7 May 2021 seeking orders:

i. …

ii.…

iii. THAT there be a stay of the decision of this Honourable Court made on 23/3/2021 and taking effect and/or being given effect pending the hearing and determination of the Appeal filed at the Court of Appeal.

iv. THAT upon grant of prayer (2) above, this Honourable Court be pleased to order a stay of proceedings and/or further proceedings both in Butali SPMCC No. 97/2017, Tito Lucheli Tangale v West Kenya Sugar Co Ltd, the resultant of this Appeal and/or other Work Injury claims, industrial matters filed in the subordinate Courts pending the hearing and determination of the Appeal filed at the Court of Appeal.

4. Tito Lucheli Tangale (the Respondent) filed a replying affidavit in opposition to the Motion on 18 May 2021.

5. Upon further Court orders, the applicant filed its submissions on 3 June 2021, while the Respondent had filed his submissions on 2 June 2021.

Applicant’s arguments

6. In seeking the orders sought, the applicant asserted that section 16 of the Work injury benefits Act was mandatory and by the Court dismissing the Appeal, the suit before the Magistrates Court would likely proceed, thus rendering its Appeal to the Court of Appeal nugatory.

7. The applicant also contended that the intended Appeal raised weighty legal issues as it would affect other suits anchored on the Work injury Benefits Act presented before other Courts.

8. In this respect, the applicant stated that the core issue was the jurisdiction of the Magistrates Court on work injury claims.

Respondent’s contestations

9. The Respondent took the position that since the applicant had initially sought a stay of proceedings before the High Court in Kakamega and the Court had granted the stay, this Court, being of equal status, had become functus officio.

10. While acknowledging that a Court could grant a stay of proceedings, the Respondent contended that such a power should be exercised sparingly and only in exceptional circumstances.

11. Lastly, the Respondent asserted that the applicant had not met the test grant of stay of proceedings.

12. The Court has considered the Motion, affidavits and submissions.

Stay pending Appeal

13. The first order sought by the applicant for the purposes of this Ruling is an order staying the judgment delivered on 23 March 2021.

14. In the judgment, the Court dismissed the applicant’s Appeal.

15. The dismissal did not require either the applicant or the Respondent to do something or refrain from doing anything. It was a negative order.

16. The jurisprudence at the moment is that a stay order cannot be issued against a negative order.

Stay of proceedings

17. The applicant also sought an order to stay the proceedings before the Magistrates Court.

18. The principles which a Court confronted with an application seeking stay of proceedings should consider were addressed in Nairobi High Court Winding-Up Cause No 43 of 2000, Global Tours & Travel Ltd thus:

As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice…the sole question is whether it is in the interest of justice to order for stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And, in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended Appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.

19. In Kenya Wildlife Service v James Mutembei (2019) eKLR, the Court stated:

A stay of proceeding should not be confused with a stay of execution pending appeal. Stay of proceedings is a grave judicial action that seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, right to be heard without delay and overall, right to a fair trial. Therefore the test for a stay of proceeding is high and stringent...

20. The Court has considered case law on stay of proceedings and the arguments by the parties and come to the view that an order of stay of proceedings is not merited for the reasons which follow.

21. First, the Constitution and this Court’s establishing statute demand that justice should be done without undue delay.

22. The suit before the Magistrates Court has been pending now for about 4-years.

23. Granting an order of stay would only lengthen the waiting period.

24. Second, the applicant would still have other options through the appellate process if the suit before the Magistrates Court proceeds to its logical conclusion at that hierarchy of the judicial chain, and an adverse finding is made against it.

25. The door to appeal any judgment made by the Magistrate's Court on the merits is still wide open, and pending any such appeal, the applicant can apply for a stay of execution pending Appeal if it is merited.

26. Third, it is not known at this stage which way the Magistrates Court will determine the proceedings pending before it.

27. Lastly, this Court did not make a determination that section 16 of the Work Injury Benefits Act was not mandatory or inapplicable.

28. What the Court held was that at the time the Respondent filed his case before the Magistrates Court, the High Court had stayed the operation of section 16 of the Work Injury Benefits Act, and therefore on the foundation of that judge declared law, the Respondent and other similarly situated employees could not be blocked from accessing the Courts.

29. The Motion dated 7 May 2021 is dismissed with costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 14TH DAY OF JUNE 2021.

Radido Stephen, MCIArb

Judge

Appearances

For applicant Onyinkwa & Co. Advocates

For Respondent Z.K. Yego Law Offices

Court Assistant Chrispo Aura