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ELRCPartially AllowedNotice of Motion dated 25th September 2018 (arising from judgment delivered 10th August 2018)· [2019] KEELRC 1300 (KLR)

Hudson Kidaha Kisigwa v Romagego Kenya Limited (Cause 2149 of 2012) (Employment and Labour) [2019] KEELRC 1300 (KLR)

Employment and Labour Relations Court
21 June 2019
3,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let a company appeal late after its lawyer missed the judgment, but only stayed execution if it paid part and secured the rest.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) on a Notice of Motion dated 25th September 2018 by the judgment debtor, a respondent against whom judgment of 10th August 2018 had awarded the claimant Kshs.4,707,945.38. The applicant sought leave for the firm of Omwebu and Associates to come on record in place of Nyachoti and Company Advocates, extension of time to file a notice of appeal, and stay of execution pending an intended appeal. The claimant opposed, arguing through his counsel's replying affidavit that the applicant had not demonstrated substantial loss or the decree holder's inability to refund. The court held that the replying affidavit sworn by the claimant's advocate was not incompetent since it dealt with matters within the advocate's knowledge from the conduct of the case. It granted Omwebu and Associates leave to come on record, noting the outgoing firm had signed a consent and that combining the prayer with the main application was not fatal under Order 9 Rule 10. Applying the thresholds in Peter Mutuku Nthuku and Bi-Mach Engineers, the court found the delay in filing the notice of appeal (filed 6th September 2018, outside the 14-day window) was occasioned by the erstwhile advocates' failure to inform the applicant of the judgment and was not inordinate. It granted leave to file the notice of appeal out of time, deeming it properly filed and admitted. On stay, the court weighed the decree holder's right to the fruits of judgment against the judgment debtor's fears of being unable to recover the decretal sum, and granted a conditional stay: the claimant to receive Kshs.147,725 plus interest, and the balance of the decretal sum to be deposited in a joint interest-earning account within 7 days. The applicant was ordered to pay the costs of the application in any event.

Key legal issues

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01

Competence of the replying affidavit sworn by the claimant's advocate

Holding

The replying affidavit was not incompetent under Rule 9 of the Advocates Practice Rules because it addressed matters within the advocate's personal knowledge gained while acting for the client

Reasoning

The applicant argued that the affidavits sworn by the claimant's counsel offended Rule 9 of the Advocates Practice Rules, which prohibits advocates from swearing affidavits on contentious matters, and should be struck out. The court held that the affidavit content related to matters occurring in the course of the advocate's representation of his client, and therefore fell within his knowledge and was not incompetent.

p. 3
02

Leave for incoming advocates to come on record after judgment

Holding

Leave was granted because the outgoing advocates signed a consent, and combining the prayer with the main application is not fatal since Order 9 Rule 10 permits combination with the change of advocate determined first

Reasoning

Order 9 Rule 9 requires a court order or a consent for a change of advocates after judgment. The record showed Nyachoti and Company Advocates signed a consent with Omwebu and Associates. Relying on S. K. Tarwadi v Veronica Muehlemann, the court noted the rule protects advocates from mischievous clients. The court held the combination of prayers was not fatal under Order 9 Rule 10 and granted leave.

p. 3
03

Extension of time to file notice of appeal out of time

Holding

The delay of about 13 days was occasioned by the former advocates' failure to inform the applicant of the judgment, was not inordinate, and should not prevent the applicant's constitutional right of appeal

Reasoning

Applying the threshold in Peter Mutuku Nthuku v Perimeter Protection Limited (length of delay, reason, chances of success, prejudice) and considering Bi-Mach Engineers v James Kahoro Mwangi on the client's duty to follow up, the court found the applicant's emails showed it pursued its advocates promptly upon learning of the judgment, and the delay from 24th August to 6th September 2018 was not inordinate.

p. 4
04

Stay of execution pending appeal

Holding

Stay was granted on conditions: part of the decretal sum to be paid to the decree holder and the balance deposited in a joint interest-earning account within 7 days

Reasoning

Under Order 42 rule 6(2), stay requires substantial loss, application without unreasonable delay, and security. The applicant showed willingness to furnish security and feared the decree holder could not refund the sum if the appeal succeeded. The court weighed the decree holder's right to the fruits of judgment against the judgment debtor's genuine fears and granted conditional stay, also ordering the applicant to pay costs of the application.

p. 4

Legal principles established

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  • A replying affidavit sworn by a claimant's advocate is not incompetent where it depones to matters within the advocate's knowledge arising in the course of representing the client
  • An application for change of advocates after judgment may be combined with other prayers provided the change of advocate is determined first (Order 9 Rule 10)
  • A delay of about 13 days in filing a notice of appeal, occasioned by the former advocate's failure to notify the client of the judgment, is not inordinate and should not bar the constitutional right of appeal

Court orders

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  1. 1.M/s Omwebu and Associates granted leave to come on record for the applicant/judgment debtor in the place of Nyachoti and Company Advocates
  2. 2.The applicant/judgment debtor granted leave to file notice of appeal out of time, and the notice of appeal filed on 6th September 2018 by Nyachoti and Company Advocates deemed properly filed and admitted on record
  3. 3.Stay of execution of the decretal sum granted pending hearing and determination of appeal on conditions: items (ii), (iv) and (v) of the judgment being Kshs.147,725 together with interest as in item (vi) be paid to the decree holder
  4. 4.Items (1) and (2) of the judgment together with interest as set out in item (vi) be deposited into an interest-earning account held in the joint names of claimant's and respondent's advocates (if not already done) within 7 days from date of the ruling
  5. 5.The applicant/judgment debtor to pay the costs of the application in any event

Authorities

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Legislation

  • Advocates Practice RulesRule 9
  • Court of Appeal Rules 2010Rule 4, Rule 75(2), Rule 77
  • Civil Procedure RulesOrder 9 Rule 9, Order 9 Rule 10, Order 42 rule 6(2), Order 50 Rule 6
  • Civil Procedure ActSection 66
  • Appellate Jurisdiction ActSection 7

Cases cited (10)

  • Amal Hauliers Ltd v Sam-Con Ltd & 3 Others
    [2012] eKLR
  • Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa
    [2016] eKLR
  • Regina Waithira Mwangi Gitau v Boniface Nthenge
    [2015] eKLR
  • Andrew Kuria Njuguna v Rose Kuria
    Nairobi Civil Case 224 of 2001 (unreported)
  • Antioine Ndiye v Africa Virtual University
    [2015] eKLR
  • Machira t/a Machira & Co. Advocates v East Africa Standard
    (2002) KLR 63
  • Republic v Registrar of Societies & another Ex-parte Joseph Ndemi Wanjiri and Others
    [2016] eKLR
  • S. K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • Peter Mutuku Nthuku v Perimeter Protection Limited
    [2018] eKLR
  • Bi-Mach Engineers Limited v James Kahoro Mwangi
    [2011] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; Order 9 Rule 9 and Order 42 rule 6(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hudson Kidaha Kisigwa v Romagego Kenya Limited (Cause 2149 of 2012)  (Employment and Labour) [2019] KEELRC 1300 (KLR)", Case Analysis (2019). Notice of Motion dated 25th September 2018 (arising from judgment delivered 10th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1300/eng@2019-06-21

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