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ELRCDismissedNotice of Motion dated 8/10/2014 (arising from judgment delivered 24/9/2013)· [2015] KEELRC 1449 (KLR)

John Otieno & Pontus Katama v Erica Kulumba T/A Rise & Shine Academy [2015] KEELRC 1449 (KLR)

Industrial Court of Kenya
6 February 2015
OMO. N. Makau
622 words in judgment
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The bottom line

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A Kenyan employment court refused to pause a judgment's execution because the losing party never filed a proper review application and waited a full year.

What this practically means

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Executive summary

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The defendant, Erica Kulumba, moved the Industrial Court by Notice of Motion dated 8/10/2014 seeking stay of execution of the judgment delivered on 24/9/2013 pending the hearing and determination of an application for review which she had filed. She argued that the review application had high chances of success and had not been brought after inordinate delay. The claimant opposed, contending that the application was fatally defective, brought after inordinate delay, and had no chances of success. At an interlocutory stage the applicant had been granted conditional stay upon deposit of the decretal sum, and the parties later consented to release Ksh.220,666 to the claimant from the deposited funds. The court framed a single issue: whether the application had merits. It found no dispute that judgment had been entered for the claimant and never appealed, that costs were taxed without appeal, and that the applicant had not sought stay or review until execution was effected one year after judgment. The court held that the Motion lacked merit because there was no competent application for review on record: review in the Industrial Court is governed by rule 32 of the Industrial Court Procedure Rules (Form 6 of the First Schedule with a memorandum) or, alternatively, by Notice of Motion under Order 45 of the Civil Procedure Rules, neither of which was adopted. Even if the annexed application were competent, it failed to identify and prove a ground for review, and the one-year delay was inordinate. The Motion was dismissed with costs on 6th February 2015.

Key legal issues

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01

Whether stay of execution should issue pending hearing of an application for review

Holding

The Motion was dismissed for lack of merit because no competent application for review was on record and, in any event, no ground for review was identified or proved and the one-year delay was inordinate.

Reasoning

The court noted that judgment had been entered for the claimant on 20/9/2013 and was never appealed; costs were taxed without appeal; and the applicant never sought stay or review until execution a year later. A stay pending review presupposes a competent review application. The annexed application did not comply with rule 32 of the Industrial Court Procedure Rules or, alternatively, Order 45 of the Civil Procedure Rules, and even if treated as competent it failed to identify and prove a ground for review, with the delay being inordinate.

p. 2

Legal principles established

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  • An application for review in the Industrial Court must be made under rule 32 of the Industrial Court Procedure Rules in Form 6 of the First Schedule with a memorandum, or by Notice of Motion supported by affidavit under Order 45 of the Civil Procedure Rules; failure to adopt either procedure renders the application incompetent.
  • A review application must identify and prove the ground upon which review is sought, and inordinate delay defeats it.

Court orders

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  1. 1.The Notice of Motion dated 8/10/2014 is dismissed with costs

Authorities

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Legislation

  • Industrial Court Procedure Rulesrule 32
  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Industrial Court Procedure Rules, rule 32; Order 45 of the Civil Procedure Rules

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, "John Otieno & Pontus Katama v Erica Kulumba T/A Rise & Shine Academy [2015] KEELRC 1449 (KLR)", Case Analysis (2015). Notice of Motion dated 8/10/2014 (arising from judgment delivered 24/9/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1449/eng@2015-02-06

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