Henry Athimbu Kurauka v Celestine Mwenda Munene [2019] KEELRC 2327 (KLR)
The bottom line
#The Employment Court dismissed a client's bid to overturn a costs ruling because he ignored a stay condition and refiled a duplicate application.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of service of the bill of costs and hearing notice
Service was properly effected on the Respondent's advocates then on record; the Taxing Officer's ruling expressly found evidence of service.
The Respondent challenged service of the bill of costs and hearing notice that preceded the Taxing Officer's ruling. The court noted the Taxing Officer's ruling of 28 September 2016 expressly found evidence of service. The application seeking judgment under section 51(2) was served on T.T. Nganga & Co. Advocates on 14 February 2018, and that service was not challenged. Counsel Mr. Ogwe confirmed service and had communicated with the Respondent, who was in Tanzania.
Abuse of court process by duplicate applications
The application dated 6 July 2018 replicated the application filed on 10 October 2016 and was an abuse of process.
The Respondent had on 10 October 2016 filed an application seeking stay of execution of the Taxing Officer's ruling, in which interim stay was granted on 11 October 2016, but the Respondent never disclosed the outcome of that application. The court found the present application a replica of the earlier one and therefore an abuse of the court process, warranting dismissal.
Discretion to grant stay conditional on deposit
The discretion was refused because the Respondent breached the condition of depositing the decretal sum of Kshs 240,520 into Court.
The interim stay had been extended on condition that the decretal sum of Kshs 240,520 be deposited into Court before 17 August 2018. The Respondent failed to comply with this condition. Non-compliance with conditions attached to discretionary relief disentitles the applicant from further exercise of the court's discretion in his favour.
Legal principles established
#- A litigant who fails to comply with conditions attached to an interim stay of execution loses entitlement to the court's discretionary indulgence.
- Filing a replica application previously filed and unprosecuted constitutes an abuse of the court process.
Court orders
#- 1.Application dated 6 July 2018 dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Advocates Act Cap 16, section 51(1) & (2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Athimbu Kurauka v Celestine Mwenda Munene [2019] KEELRC 2327 (KLR)", Case Analysis (2019). Misc. Application No. 153 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2327/eng@2019-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.