Jalias Ayotabi Awiti v J.R.S Group Security Limited [2018] KEELRC 413 (KLR)
The bottom line
#A Kenyan employment court refused to halt a judgment debt because the employer delayed, offered no security, and its new lawyers were not properly on record.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates were properly on record
The applicant's counsel was not properly on record and had not approached the court properly to be granted leave to come on record, which was sufficient reason to dismiss the application
Order 9 Rule 9 of the Civil Procedure Rules requires that a change of advocates after judgment be effected either by an application with notice to all parties or by consent between the outgoing and incoming advocates. Neither condition was met: there was no notice to the previous advocates and no consent. Rule 10 requires this question to be determined first, and failure on it disposes of the application.
Whether the requirements for stay of execution pending appeal under Order 42 Rule 6(2) were satisfied
The applicant failed to establish substantial loss and nugatory-ness; it did not address the claimant's ability to repay the decretal sum and made the application after inordinate delay
Order 42 Rule 6(2) requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security be given. The applicant filed a notice of appeal in time but took no steps for months until auctioneers proclaimed its property, having allowed prior stays to lapse. It did not address the claimant's ability to refund the decretal sum, a relevant factor, and so did not discharge the burden of proving the appeal would be rendered nugatory.
Legal principles established
#- A successful litigant ought not be denied the fruits of his judgment where such judgment is regular
- A change of advocates after judgment requires either an application with notice to all parties or a consent between the outgoing and incoming advocates under Order 9 Rule 9 of the Civil Procedure Rules
- An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and provide security, and must address the decree-holder's ability to refund the decretal sum
Court orders
#- 1.The application dated 21st April 2017 is dismissed with costs to the claimant
- Jurisdiction invoked
- Inherent jurisdiction of the court under the Civil Procedure Rules (Order 9 Rules 9 and 10; Order 42 Rule 6(2)) over an application for stay of execution pending appeal from this court's own judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jalias Ayotabi Awiti v J.R.S Group Security Limited [2018] KEELRC 413 (KLR)", Case Analysis (2018). Not disclosed in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/413/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.