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Court of AppealDismissedCivil Appeal 22 of 2020· [2022] KECA 776 (KLR)

Buscar (EA) Limited v Shali & 2 others

Court of Appeal
10 June 2022
SKS. Gatembu KairuAMA. Mbogholi MsaghaPNP. Nyamweya
1,740 words in judgment
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The bottom line

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A Kenyan company lost its appeal because it failed to challenge an earlier judgment in time, and courts won't let you relitigate settled issues.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Kairu, Mbogholi-Msagha and Nyamweya, JJA) dismissed an appeal by Buscar (EA) Limited against a garnishee ruling of the ELRC (Ndolo J) dated 4th March 2020, which made absolute a garnishee order directing Stanbic Bank to release Kshs 498,483.61 to the 1st Respondent, a decree-holder under a judgment of 22nd November 2018 for wrongful termination of employment. The Appellant, an objector in the garnishee proceedings, argued that it was a distinct legal entity from Buscar Limited (the judgment debtor) and that the attached account belonged to it. Counsel collapsed the fourteen grounds of appeal into a single ground: that the trial court failed to appreciate the legal distinction between the two companies. The court held that the question of the parties' legal identity had been conclusively determined in the judgment of 22nd November 2018 by Rika J, which held that the employer's corporate structure was immaterial to the employee's claim, and that subsequent attempts to reopen the issue had been declined. That judgment was never appealed, so the finding was res judicata and the impugned ruling did not err. The court also held that, contrary to the Appellant's submission, a non-party could have appealed as an affected person under Rule 75(1) of the Court of Appeal Rules. The court declined to issue a declaration of distinct legal personality, as the relief was neither a substantive prayer nor urged in the garnishee proceedings. The appeal was dismissed with costs to the 1st and 3rd Respondents, with the court expressing concern at the inept preparation of the record of appeal.

Key legal issues

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01

Whether the distinct legal identity of the Appellant and 2nd Respondent could be relitigated in the garnishee proceedings

Holding

No - the issue was conclusively determined in the judgment of 22nd November 2018, which was never appealed against, and was therefore res judicata

Reasoning

The trial court's judgment of 22 November 2018 expressly held that it was immaterial whether the employer was Buscar Limited, Buscar E.A. Limited or Busways Limited, since the employee need only show he worked for the employer's business. Subsequent rulings by Rika J and Ndolo J declined to reopen the issue. The Appellant never appealed that judgment, so the finding stood and the garnishee ruling correctly treated the matter as res judicata.

p. 3
02

Whether a non-party could appeal the trial judgment

Holding

Yes - as an affected person the Appellant could and should have appealed the judgment of 22nd November 2018 under Rule 75(1)

Reasoning

Rule 75(1) of the Court of Appeal Rules 2010 governs notices of appeal. The court rejected the submission that a non-party is shut out from appeal; an affected person may appeal findings in the trial judgment. Having failed to do so, the Appellant could not relitigate the issue collaterally in garnishee proceedings or on this appeal.

p. 3

Legal principles established

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  • An affected person who was not a party to the trial suit may still appeal against findings in the trial judgment under Rule 75(1) of the Court of Appeal Rules
  • Findings in a judgment not appealed against bind the parties and render subsequent attempts to relitigate them res judicata

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st and 3rd Respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 75(1)
  • Employment ActSection 2
On appeal from
Employment & Labour Relations Court at Mombasa
Mombasa ELRC Case No. 323 of 2015
Jurisdiction invoked
First appeal / appellate jurisdiction under the Court of Appeal Rules 2010 (Rule 75(1) discussed on the right of an affected person to appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Buscar (EA) Limited v Shali & 2 others", Case Analysis (2022). Civil Appeal 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/776/eng@2022-06-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.