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ELRCDismissedNot stated in the extract· [2018] KEELRC 1414 (KLR)

Martin Odhiambo Osula & another v Load Runners Limited [2018] KEELRC 1414 (KLR)

Employment and Labour Relations Court
19 July 2018
929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer's repeated attempts to delay paying unfair termination awards failed, with the court punishing the delay by dismissing its application with costs.

What this practically means

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Executive summary

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The judgment arises from execution proceedings following a judgment delivered on 18 January 2016 in which the Court held that the termination of the Claimants' employment was unfair and awarded them damages. The Claimants moved to execute the decree. The Respondent made successive attempts to stay execution: an application of 30 September 2016 (allowed interim stay, later dismissed for want of prosecution on 27 October 2016); an application of 24 March 2017 (stay granted on condition the decretal sum be deposited in Court within 28 days, a condition never complied with, leading to execution being allowed on 17 July 2017); and a police-assisted execution order granted to the Claimants on 29 September 2017. On 22 June 2018, through a new firm (Ng'ang'a & Mugwe Advocates) that came on record without leave, the Respondent sought stay of attachment and sale of its goods and leave to file its Memorandum of Appeal out of time. The Court held that the stay prayer was casually drafted as a transient ex parte order which became spent and was technically incompetent; that on the merits the purpose of the stay was undisclosed; and that the Respondent's conduct - two previous failed stay applications, non-compliance with the deposit condition, failure to file a Notice of Appeal for over two years, and advocates coming on record without leave - amounted to abuse of Court process and inordinate delay. The application was dismissed with costs to the Claimants.

Key legal issues

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01

Competence of the stay prayer

Holding

The stay prayer was technically incompetent because it was an ex parte/transient prayer that became spent.

Reasoning

The Court found proposed order 2 casually drafted: it sought a transient or ex parte order pending an inter partes hearing. Since the order was not granted at the ex parte stage, it was spent and technically incompetent. The Court nonetheless went on to consider the merits, finding the purpose of the stay undisclosed and speculative.

p. 2
02

Abuse of Court process and inordinate delay

Holding

The Respondent's serial stay applications and non-compliance with prior conditions amounted to abuse of process and inordinate delay justifying dismissal.

Reasoning

The Respondent had made two previous attempts to stay execution, failed to deposit the decretal sum as ordered on 24 March 2017, and had not filed a Notice of Appeal more than two years after judgment. The Court inferred an intent to delay execution and possibly to take advantage of different judicial officers to obtain what earlier applications failed to achieve.

p. 3
03

Extension of time to file Memorandum of Appeal

Holding

Refused due to inordinate delay and absence of a Notice of Appeal.

Reasoning

The Respondent sought leave to file the Memorandum of Appeal out of time but had not filed a Notice of Appeal more than two years after judgment, nor complied with the earlier stay condition to deposit the decretal sum. The Court found the delay inordinate and declined the extension.

p. 3

Legal principles established

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  • A prayer drafted as a transient/ex parte stay pending inter partes hearing becomes spent if not granted at the ex parte stage and is technically incompetent.
  • Repeated successive applications for stay of execution without compliance with conditions may constitute abuse of the Court process by a judgment debtor.
  • An advocate coming on record after judgment requires leave, or must explain the absence of leave, under the applicable rules on change of advocate.

Court orders

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  1. 1.The application dated 22 June 2018 (proposed orders 2 and 3) is dismissed
  2. 2.Costs of the application awarded to the Claimants
Jurisdiction invoked
Not expressly stated; invoked the Court's supervisory and discretionary jurisdiction under the applicable rules on stay of execution and change of advocate after 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, "Martin Odhiambo Osula & another v Load Runners Limited [2018] KEELRC 1414 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1414/eng@2018-07-19

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