The Court of Appeal this week dismissed Meta’s application to stay proceedings in the Redundancy Dispute. The ELRC stayed Meta’s redundancy issued in March to 300 Facebook moderators employed by a Meta subcontractor (Samasource) in Kenya.
Meta sought to stay the proceedings citing a pending contempt application against it at the ELRC. However, the Court of Appeal noted that Meta was yet to be found guilty of contempt of court and reserved the right to appeal a conviction for contempt.
The court observed that staying proceedings pending interlocutory appeals is a drastic judicial action meant for exceptional circumstances. The exceptional circumstances are:
a) if the impugned order has conclusively determined disputed questions of fact;
b) if the impugned order has resolved important questions separate from the merits of the action; and,
c) if the impugned order is effectively unreviewable on appeal from the final judgment in the underlying application or proceeding.
The court reasoned that a stay of proceedings disrupts the quick conclusion of the main matter and should therefore not be granted unless the proceedings, beyond all reasonable doubt, should not be allowed to continue. The Court, therefore, issued the following guidelines on staying proceedings because of interlocutory rulings:
a) There must be a pending appeal. A stay of proceedings can be granted only if there is a pending appeal.
b) The appeal must be arguable appeal. Meaning that the appeal, which forms the basis of an application for stay of proceeding, must be competent and arguable on its
merits. Where an appeal is frivolous, vexatious or an abuse of court process, an appellate court will decline jurisdiction to entertain the application.
c) Where the interlocutory appeal will finally dispose of the case or put an end to the proceedings in the lower court, stay of proceedings would be granted. An example is where an appeal raises a pure issue of jurisdiction of the lower court
d) Where the res will be destroyed, damaged or annihilated before the matter is disposed of, an appellate court will grant stay.
e) The Court of Appeal would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused.
f) A stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory.
This decision crystallizes a point the court has raised with increasing frequency: interlocutory stay of proceedings are disruptive.
In Itumbi v Law Society of Kenya & 55 Others [2023] KECA 593 (KLR) (26 May 2023), declining Dennis Itumbi’s motion for stay of proceedings the court stated, “the applicant’s Motion heralding the intended appeal comes way ahead of its time… it is premature as no substantive decision capable of being challenged on appeal was made by the learned Judge”.
