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ELRCDismissedNot disclosed in the judgment· [2018] KEELRC 413 (KLR)

Jalias Ayotabi Awiti v J.R.S Group Security Limited [2018] KEELRC 413 (KLR)

Employment and Labour Relations Court
6 December 2018
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Employment and Labour Relations Court on a notice of motion dated 21st April 2017 in which the respondent in a suit it had lost sought, among other prayers, leave for the firm of Odhiambo Ouma and Company Advocates to come on record, review of the court's orders of 12th April 2017, and stay of execution of the decree pending an intended appeal to the Court of Appeal. The application was supported by an affidavit of the respondent's General Manager, Yasser Abdul Khan, who attributed the delay to the erstwhile advocates on record. The claimant filed grounds of opposition contending that the application was misconceived, brought in bad faith to delay settlement, and that the appeal had no chance of success. The court identified two issues: compliance with the requirements for stay, and the preliminary issue of whether the incoming advocates should be granted leave to come on record. Applying Order 9 Rules 9 and 10, the court found there was neither notice to the previous advocates nor consent, so counsel was not properly on record. On the merits, applying Order 42 Rule 6(2), the court held that a successful litigant should not be denied the fruits of a regular judgment; the applicant had allowed previous stays to lapse, come to court only when threatened with execution, offered no security, and failed to address the claimant's ability to refund the decretal sum. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether the incoming advocates were properly on record

Holding

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

Reasoning

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.

p. 3
02

Whether the requirements for stay of execution pending appeal under Order 42 Rule 6(2) were satisfied

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 21st April 2017 is dismissed with costs to the claimant

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • MACHIRA T/A MACHIRA & CO ADVOCATES -V- EAST AFRICAN STANDARD (NO. 2)
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

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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, "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.