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ELRCDismissedNot stated in judgment· [2021] KEELRC 820 (KLR)

Edna Simiti v Intex Construction Limited [2021] KEELRC 820 (KLR)

Employment and Labour Relations Court
7 October 2021
MMM. Mbaru
973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a company's bid to change lawyers and access deposited judgment money, ruling repeated applications after final decisions abuse court process.

What this practically means

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Executive summary

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The respondent, Inter Construction Limited, filed an application dated 24th February 2021 seeking leave for its incoming advocates to come on record after judgment, variation of the orders of 14th January 2021 to allow it to utilise the decretal sum deposited in a joint interest earning account, and enlargement of time to comply with the orders of 11th November 2020. The application was supported by the affidavit of Samit Gehlot, the managing director, who complained that despite compliance with the deposit directions, the claimant had instructed auctioneers to attach the respondent's assets, amounting to double punishment. The claimant opposed, pointing out that identical orders had been sought in earlier applications dated 30th June 2020 and 11th January 2021, which were heard and dismissed with costs, that the respondent had confirmed full compliance with the deposit conditions, and that the application was simply a delay tactic. The court held that no good cause had been shown for a change of advocates after judgment, since the affidavit did not explain the reasons for the change. On the substantive orders, the court observed that the respondent had already deposited the entire decretal sum, that the questions of stay of execution and its review had been finally determined, and that where conditional stay orders have been complied with and no appeal filed, any attachment on the ensuing orders would be invalid. The court declared itself functus officio with regard to review and variation of its orders and branded further applications an abuse of process. The application dated 24th February 2021 was dismissed, and by extension the application dated 2nd August 2021 seeking to urge it, with costs to the claimant.

Key legal issues

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01

Leave to come on record after judgment

Holding

Refused; no good cause shown

Reasoning

The respondent's managing director's affidavit did not address why leave for a change of advocates was sought. The court held that after judgment, and in the face of substantive orders with far-reaching effects, good cause must exist to permit a change of advocates, and none was demonstrated.

p. 2
02

Variation of stay orders and utilisation of the deposited decretal sum

Holding

Refused; the court is functus officio

Reasoning

The respondent had already deposited the entire decretal sum in the joint interest earning account as directed. The issues of stay of execution and review of the stay orders had been finally determined on 9th February 2021, leaving no room for further review or variation. Repeated applications were held to be an abuse of process.

p. 2

Legal principles established

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  • Leave for a change of advocates after judgment requires good cause, even where the right to legal representation exists
  • Where conditional stay orders have been complied with and no appeal filed, execution or attachment on the ensuing orders would be invalid
  • Once a court has clarified the purpose of conditional stay and addressed review thereof, it becomes functus officio; repeated applications for review or variation are an abuse of court process

Court orders

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  1. 1.Application dated 24th February, 2021 dismissed
  2. 2.Application dated 2nd August, 2021 seeking to urge the earlier application also addressed/dismissed
  3. 3.Costs awarded to the claimant
Jurisdiction invoked
Original and supervisory jurisdiction of the Employment and Labour Relations Court over its own interlocutory orders (not expressly stated)

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, "Edna Simiti v Intex Construction Limited [2021] KEELRC 820 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/820/eng@2021-10-07

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