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ELRCDismissedELRC Cause (Nairobi), applications dated 23rd October 2017 and 9th October 2017· [2018] KEELRC 975 (KLR)

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)

Employment and Labour Relations Court
12 October 2018
2,997 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that anyone who ignores court orders loses the right to be heard until they fully comply.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) dealt with several interlocutory applications in a long-standing employment cause in which the claimants had been awarded Kshs.50,506,075/= by judgment dated 28th April 2011. In execution, the 2nd Interested Party auctioneer sold LR No. 1515/1/M.N. for Kshs.120 million, retaining Kshs.30 million for costs. Consent orders of 10th September 2015 required him to deposit Kshs.20 million into a joint advocates' account; he deposited only Kshs.15.5 million, leaving Kshs.4.5 million outstanding, and warrants of arrest were issued for contempt and extended on 13th September 2017. Three applications were before the court: the 2nd Interested Party's application of 23rd October 2017 seeking stay of warrants, stay of the claimants' application of 9th October 2017 pending taxation of its bill of costs, and setting aside of the consent orders; the claimants' application of 9th October 2017 seeking execution of the warrants and committal to civil jail for six months and a full statement of accounts; and preliminary objections by the claimants and 1st Interested Party. The court held that Order 9 Rule 9 did not apply to a party joined after judgment, but upheld the preliminary objections on the grounds that the applicant was in un-purged contempt, that its application duplicated Nairobi HC Misc. Civil Application No. 367 of 2015, and that it was an afterthought filed to delay execution. The application of 23rd October 2017 was dismissed, the warrants were confirmed and extended, the applicant was denied audience until purging the contempt, and costs were awarded to the claimants and 1st Interested Party.

Key legal issues

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01

Whether Order 9 Rule 9 applies to a party joined after judgment

Holding

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

Reasoning

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.

p. 4
02

Whether the applicant, being in contempt, is entitled to audience

Holding

The applicant is in contempt, has not purged it, and has no audience before the court until he complies with the orders

Reasoning

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.

p. 5
03

Whether the application is res judicata or duplicative of Nairobi HC Misc. Civil Application No. 367 of 2015

Holding

The application seeks to litigate a matter already litigated or pending determination in the High Court, warranting dismissal

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The 2nd Interested Party has no audience before the court until he purges the contempt
  4. 4.The application dated 23rd October 2017 is dismissed
  5. 5.The 2nd Interested Party shall pay the costs of the claimants and 1st Interested Party

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Auctioneers Actnot specified

Cases cited (5)

  • SeeBound Limited vs London Distillers (K) Limited
    Civil Suit Number 184 of 2001 (Unreported)
  • Simon Barasa Obiero v Jackson Onyango Obiero
    [2016] eKLR
  • Peter Ludasia Makokha v Theresia Hudson
    Busia H.C. Civil Appeal No. 18 of 2015
  • Livingstone Simei Sane v Shadrack F. Ogata & Another
    [2015] eKLR
  • ABDIRASHID ADAN HASSAN -V- MASTERWAYS PROPERTIES LIMITED
    (2013) eKLR
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

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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, "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.