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ELRCStruck OutNot stated in the judgment extract (ELRC cause; judgment of 21st June 2019 referenced)· [2021] KEELRC 544 (KLR)

Jackson Mugolio Musunji & 3 others v Dambusters East Africa Limited [2021] KEELRC 544 (KLR)

Employment and Labour Relations Court
5 November 2021
2,111 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a company's application to stop execution of a judgment because it was a repeat request and filed by an advocate without the court's permission.

What this practically means

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Executive summary

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The Respondent/Applicant in an employment cause in which judgment was delivered on 21st June 2019 filed a notice of motion dated 9th September 2020 seeking interim and final injunctions restraining the Claimants from attaching, distraining or levying execution against its business premises and goods, a stay of execution of the judgment and subsequent orders, and an extension of time to deposit the decretal sum of Kshs.1,041,968.25 in a joint interest-earning account pending appeal. The Applicant, a hospitality business affected by Covid-19, claimed inability to raise the decretal sum and complained of a Kshs.150,000 auctioneers' proclamation fee. The Claimants opposed, asserting the application was res judicata given the December 2019 ruling granting conditional stay, that no appeal had been lodged, and that taxation of costs had concluded. The Applicant filed no submissions. The court framed two issues: res judicata and whether the threshold for the orders sought was met. Relying on the Supreme Court's articulation of res judicata and Section 7 of the Civil Procedure Act, the court found the application res judicata, as a similar application of 29th July 2019 had been allowed on 16th December 2019 on condition the decretal sum be deposited within 30 days, a condition unmet. Additionally, the application was filed by Kithinji Marete & Company Advocates without a court order under Order 9 Rules 9 and 10 permitting the change of advocates after judgment, making the counsel a stranger to the proceedings. The application was struck out with costs to the Claimants.

Key legal issues

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01

Whether the application dated 9th September 2020 is res judicata

Holding

It is res judicata because a prior application dated 29th July 2019 seeking inter alia stay of execution was allowed on 16th December 2019 on condition the Applicant deposit the decretal sum in a joint interest-earning account within 30 days, a condition never met

Reasoning

The court found that the Applicant had already obtained conditional stay of execution in December 2019 in a prior application seeking similar orders. The Applicant failed to comply with the condition within 30 days and then sought the same relief afresh, citing Covid-19. The court applied the five elements of res judicata from the IEBC v Maina Kiai decision and agreed with the Claimants that the matter was already determined.

p. 4
02

Whether the application was competently filed by the firm of Kithinji Marete and Company Advocates

Holding

It was not: although a notice of change of advocates and a consent were filed, no court order granting leave under Order 9 Rule 9 was sought or obtained after judgment, so the filing counsel was a stranger to the proceedings

Reasoning

The suit was filed by Elkington & Associates and judgment was delivered on 21st June 2019. Order 9 Rule 9 requires that any change of advocate, or a party electing to act in person, after judgment be effected by court order or consent, and the question determined first under Rule 10. Filing a consent alone is insufficient; the court must sanction the change. Kithinji Marete & Company Advocates obtained no such order, rendering the application incompetent.

p. 4
03

Whether the Applicant met the threshold for stay of execution, injunction and extension of time

Holding

The application failed independently on res judicata and incompetent representation, so the threshold was never reached; the court struck it out

Reasoning

Having found the application res judicata and filed by counsel without leave to come on record, the court did not need to consider whether the Applicant satisfied the conditions for an injunction, stay of execution or extension of time. The application was characterised as without merit and doomed to fail, and was struck out with costs to the Claimants.

p. 4

Legal principles established

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  • A change of advocate after judgment requires an order of the court even where a consent between outgoing and incoming advocates has been filed; until such an order is granted, the incoming advocate is a stranger to the proceedings
  • Res judicata bars a party from re-litigating the same issue between the same parties under the same title after final determination, and its elements are those set out in Section 7 of the Civil Procedure Act

Court orders

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  1. 1.The application dated 9th September 2020 is struck out
  2. 2.Costs of the application awarded to the Claimants

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 9 Rules 9 and 10
  • Civil Procedure RulesOrder 21 Rule 1 (waived compliance)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Court of Appeal RulesNot specified (referred to on lodgment of appeals)

Cases cited (5)

  • Kenya Commercial Bank Limited Muiri Coffee Estate Limited & Another
    (2016) eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
  • John Langat v Kipkemoi Terer & 2 Others
    [2013] eKLR
  • S.K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over its own cause and post-judgment applications; Civil Procedure Act and Civil Procedure Rules (Order 9 Rules 9 and 10) apply

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, "Jackson Mugolio Musunji & 3 others v Dambusters East Africa Limited [2021] KEELRC 544 (KLR)", Case Analysis (2021). Not stated in the judgment extract (ELRC cause; judgment of 21st June 2019 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/544/eng@2021-11-05

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