Peter Chege Kanja & 6 others v China Wu Yi Limited [2018] KEELRC 2020 (KLR)

Employment and Labour Relations Court

6 April 2018

RSRadido Stephen

860 words in judgment

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The bottom line

Kenya's Employment Court dismissed China Wu Yi's review bid, struck out repeat stay applications as an abuse of process, and made the company's advocate personally pay costs.

What this practically means

Executive summary

This ruling arises from a judgment delivered on 28 July 2017 in which the Court held that the seven Claimants' contracts with China Wu Yi Ltd ended lawfully but that they were underpaid and entitled to notice pay, with awards carrying interest from the date of filing. The Claimants' costs were taxed at Kshs 14,060 and they proceeded to execute, obtaining proclamations and warrants of attachment on 26 February 2018. The Respondent then sought stay of execution pending appeal; on 12 March 2018 the Court granted temporary stay on condition that the decretal sum of Kshs 11,174,393.70 be deposited into Court by 16 March 2018. The Respondent did not comply and on 13 March 2018 sought variation of the condition, which the Court declined on 15 March 2018. The Respondent then applied on 21 March 2018 for review of that order, seeking to deposit a bank guarantee instead of cash, anchored on allegedly new evidence - a bank statement from Standard Chartered Bank Ltd. The Court held the bank statement was available when the earlier application was filed and could not qualify as new evidence; the application was an afterthought. The Court also found the 9 March 2018 stay application an abuse of process because the Respondent had not disclosed that a similar application had been dismissed with costs on 10 November 2017 after a hearing on the merits. The Court dismissed the review with costs to the Claimants, struck out the 8 March 2018 application on its own motion, ordered the Respondent's advocate to personally bear those costs, and confirmed that execution could proceed unless the Court of Appeal decreed otherwise.

Key legal issues

Whether the bank statement constituted new evidence justifying review

Holding

No; the evidence was available at the material time and the review application was an afterthought

Reasoning

The Respondent had moved the Court to vary the stay condition on 12 March 2018 and knew the threshold it had to satisfy. If its bank statement was material to demonstrate liquidity, that evidence was then available. Introducing it later was an afterthought, so it could not qualify as new evidence discovered after the earlier application despite due diligence.

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Whether the successive stay applications were an abuse of the Court process

Holding

Yes; the Respondent filed repeated applications without disclosing that a similar application had been dismissed with costs after a hearing on the merits

Reasoning

The Respondent had applied for stay of execution pending appeal on 28 August 2017 and the application was dismissed with costs on 10 November 2017. Filing a fresh application on 9 March 2018 without disclosure of the dismissed application, possibly taking advantage of the Judge's transfer, amounted to abuse of process, prompting the Court to strike out the application on its own motion.

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Legal principles established

Evidence available at the time of filing an application cannot qualify as new evidence for review where due diligence would have produced it
Filing successive applications on the same issue without disclosing a prior dismissed application constitutes abuse of the Court process

Court orders

1.The application dated 21 March 2018 seeking review is dismissed with costs to the Claimants
2.The Court, on its own motion, strikes out the application dated 8 March 2018 and filed in Court on 9 March 2018
3.The Respondent's advocate who filed the application on 9 March 2018 to personally bear the costs of the application
4.Execution which had commenced can proceed unless the Court of Appeal decrees otherwise

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (Cause No. 24 of 2014); review of the Court's own orders

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Peter Chege Kanja & 6 others v China Wu Yi Limited [2018] KEELRC 2020 (KLR)", Case Analysis (2018). Cause No. 24 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2020/eng@2018-04-06

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