Jackson Mugolio Musunji & 3 others v Dambusters East Africa Limited [2021] KEELRC 544 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application dated 9th September 2020 is res judicata
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
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.
Whether the application was competently filed by the firm of Kithinji Marete and Company Advocates
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
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.
Whether the Applicant met the threshold for stay of execution, injunction and extension of time
The application failed independently on res judicata and incompetent representation, so the threshold was never reached; the court struck it out
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.
Legal principles established
#- 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
#- 1.The application dated 9th September 2020 is struck out
- 2.Costs of the application awarded to the Claimants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.