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ELRCDismissedMisc. Application No. 153 of 2017· [2019] KEELRC 2327 (KLR)

Henry Athimbu Kurauka v Celestine Mwenda Munene [2019] KEELRC 2327 (KLR)

Employment and Labour Relations Court
1 February 2019
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) determined an application dated 6 July 2018 by the Respondent, Celestine Mwenda Munene, seeking stay of execution of the decree and consequential orders of the ruling issued on 9 March 2018, setting aside that ruling, and an opportunity to cross-examine the process server, in proceedings brought by Kurauka & Co. Advocates under section 51(1) and (2) of the Advocates Act to recover taxed costs in Cause No. 2365 of 2012. The Respondent argued that the bill of costs and hearing notice were never served, that he only became aware of a bill of costs in Misc. Application No. 109 of 2015 (which was withdrawn on 27 October 2016), and that three bills of costs had been filed over the same matter. The court reviewed the record and found that the Taxing Officer's ruling of 28 September 2016 expressly found evidence of service; that the Respondent's then advocates on record, T.T. Nganga & Co. Advocates, were served with the application for judgment and that service was unchallenged. The court also noted the Respondent had earlier filed a similar application on 10 October 2016, whose fate was never disclosed, and that he had failed to comply with the condition attached to the interim stay, namely deposit of the decretal sum of Kshs 240,520 into Court by 17 August 2018. Holding the application to lack merit and to be an abuse of the court process as a replica of the earlier application, the court dismissed it with no order as to costs.

Key legal issues

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01

Adequacy of service of the bill of costs and hearing notice

Holding

Service was properly effected on the Respondent's advocates then on record; the Taxing Officer's ruling expressly found evidence of service.

Reasoning

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.

p. 2
02

Abuse of court process by duplicate applications

Holding

The application dated 6 July 2018 replicated the application filed on 10 October 2016 and was an abuse of process.

Reasoning

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.

p. 2
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Discretion to grant stay conditional on deposit

Holding

The discretion was refused because the Respondent breached the condition of depositing the decretal sum of Kshs 240,520 into Court.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application dated 6 July 2018 dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Advocates Actsection 51(1) & (2)
Jurisdiction invoked
Advocates Act Cap 16, section 51(1) & (2)

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, "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.