Aphonse Mwangemi Munga & 10 others (suing on behalf and on behalf of 367 employees of African Safari Club Limited) v African Safari Club Limited & 2 others [2018] KEELRC 975 (KLR)
The bottom line
#A Kenyan court confirmed that anyone who ignores court orders loses the right to be heard until they fully comply.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 applies to a party joined after judgment
Order 9 Rule 9 does not apply to the 2nd Interested Party as it was enjoined to the proceedings after judgment; its advocates came on record properly by filing a notice of change of advocates
The court agreed with both interested parties that the mischief of Order 9 Rule 9 was to prevent a client from avoiding paying advocate's fees after judgment. The 2nd Interested Party was enjoined to the suit after judgment, and there was no judgment or decree fully determining the issues for which it was enjoined, so the rule was inapplicable. The court found the authority relied on by the applicant not relevant to these circumstances.
Whether the applicant, being in contempt, is entitled to audience
The applicant is in contempt, has not purged it, and has no audience before the court until he complies with the orders
The applicant's contempt was established by the court's orders of 26th May 2016, extended on 13th September 2017, and he had not fully complied. Court orders are to be obeyed unless set aside or stayed; no stay existed. The court held that a contemnor cannot be heard by the court whose orders he has disobeyed before redeeming himself by compliance.
Whether the application is res judicata or duplicative of Nairobi HC Misc. Civil Application No. 367 of 2015
The application seeks to litigate a matter already litigated or pending determination in the High Court, warranting dismissal
The applicant sought stay of the claimants' application until its bill of costs was taxed, yet it had filed two separate bills over the same subject matter, one in this court and one in Nairobi H.C. Misc. No. 367 of 2015. The applicant did not address this issue in submissions and did not inform the court whether the High Court application was still pending or determined.
Legal principles established
#- A party in contempt of court orders cannot be granted audience until he complies with the orders
- Order 9 Rule 9 of the Civil Procedure Rules does not apply to a party enjoined to proceedings after judgment
Court orders
#- 1.The preliminary objections filed by the claimants and 1st Interested Party are upheld to the extent that the applicant is in contempt of court orders which contempt has not been purged and the application is an abuse of court process
- 2.The warrants of arrest are confirmed and extended for as long as the 2nd Interested Party shall not have obeyed the court orders
- 3.The 2nd Interested Party has no audience before the court until he purges the contempt
- 4.The application dated 23rd October 2017 is dismissed
- 5.The 2nd Interested Party shall pay the costs of the claimants and 1st Interested Party
- Jurisdiction invoked
- Not expressly stated; Employment and Labour Relations Court seized of contempt/execution applications in a cause in which judgment was delivered 28th April 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aphonse Mwangemi Munga & 10 others (suing on behalf and on behalf of 367 employees of African Safari Club Limited) v African Safari Club Limited & 2 others [2018] KEELRC 975 (KLR)", Case Analysis (2018). ELRC Cause (Nairobi), applications dated 23rd October 2017 and 9th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/975/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.