Issa Shekue Shalivs v Buscar Limited; Buscar E.A. Limited (Objector/Applicant) [2019] KEELRC 177 (KLR)
The bottom line
#The Employment Court in Mombasa refused to stop the sale of attached property, ruling a company cannot relaunch the same application a judge already dismissed.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / abuse of process
The application duplicated the prayers and grounds of an earlier application dismissed on 24th October 2019 and was an abuse of process
The court compared the prayers and grounds of the 25th October 2019 application with those before Rika J and found them strikingly similar. Seeking a second determination of the same issues constitutes an abuse of court process and defeats finality of litigation.
Stay of a dismissal order
No stay can issue in respect of a dismissal order
Counsel for the Claimant submitted, and the court accepted, that the order of 24th October 2019 was a dismissal, not a positive order, and therefore incapable of being stayed. This also explains why the Objector's application relied on grounds from the initial objection proceedings.
Whether the intended appeal is arguable / nugatory
The court did not reach this question as the application failed on abuse of process and the nature of the order sought to be stayed
Although the Objector contended that its intended appeal was arguable and would be rendered nugatory absent a stay, the court disposed of the application on the threshold issues of duplication and stayability of the dismissal order, without determining the merits of the intended appeal.
Legal principles established
#- Relitigating the same prayers already determined by the court is an abuse of court process (res judicata in substance)
- A dismissal order is not a positive order capable of being stayed
Court orders
#- 1.The Objector's application dated 25th October 2019 is disallowed with costs to the Claimant
- Jurisdiction invoked
- Ruling on an interlocutory application for stay of execution pending appeal in a matter before the ELRC; specific constitutional/statutory basis not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issa Shekue Shalivs v Buscar Limited; Buscar E.A. Limited (Objector/Applicant) [2019] KEELRC 177 (KLR)", Case Analysis (2019). Not stated on the face of the ruling (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/177/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.