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ELRCDismissedNot stated in judgment· [2021] KEELRC 863 (KLR)

Musa Mohamed Kaleve & 2 others v East Africa Portland Cement Company Limited [2021] KEELRC 863 (KLR)

Employment and Labour Relations Court
30 September 2021
OMOnesmus N Makau
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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An employer that missed the deadline to deposit a court-ordered payment could not revive the lapsed stay order by asking for instalments, so it must pay.

What this practically means

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Executive summary

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The respondent/judgment debtor, having failed to comply with conditional stay orders issued on 5.2.2021 requiring it to deposit the entire decretal sum of Kshs 14,226,341.32 within 21 days into a joint interest-earning account, filed a Notice of Motion dated 28.5.2021 seeking review of those orders. It proposed to deposit Kshs 3,500,000 immediately and the balance of Kshs 10,756,341.32 in 11 equal monthly instalments of Kshs 975,122, citing financial turmoil said to include a loss of over one billion shillings, and relying on Rule 33 of the ELRC Procedure Rules. The claimant opposed through a preliminary objection and replying affidavit, contending the application was incompetent (res judicata, functus officio, and non-compliance with Order 9 Rule 9(3) of the Civil Procedure Rules) and without merit since the stay order had already lapsed. The court (Makau J) overruled the preliminary objection, holding that the application was for review rather than a fresh stay, and that a consent signed by the former counsel cured any Order 9 Rule 9(3) defect. On the merits, however, the court held that the application neither sought reinstatement of the lapsed conditional stay order nor extension of the compliance period, so any instalmental deposit would be futile. The court distinguished Arun Sharma v Ashana Raikundalia, where the stay was extended before lapsing. The application was dismissed with costs, but the status quo order of 14.6.2021 was extended for 30 days to enable the applicant to consider its options, including approaching the appellate court.

Key legal issues

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01

Competency of the application (res judicata, functus officio, Order 9 Rule 9(3))

Holding

The preliminary objection failed; the application was competent.

Reasoning

The court found the application sought review, not a fresh stay, so it was neither res judicata nor barred by functus officio. Order 9 Rule 9(3) was satisfied because the new counsel filed a consent signed by the former counsel permitting the change of advocate after judgment, and the notice of change had been served without denial. The preliminary objection was accordingly overruled.

p. 3
02

Sufficient cause for review of the lapsed stay order

Holding

No review granted; the application was dismissed.

Reasoning

Although financial hardship was advanced as sufficient cause, the application neither sought reinstatement of the lapsed conditional stay order nor extension of the compliance period, so instalmental deposit would serve no purpose. The court also distinguished the cited precedent, where the stay order was extended before lapsing, unlike the present case where it lapsed before compliance. The application was dismissed with costs, though status quo was extended for 30 days to allow the applicant to consider its next move.

p. 3

Legal principles established

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  • A court retains jurisdiction to review its own orders and is not functus officio where the application is for review rather than a fresh order
  • Where a conditional stay order has lapsed for non-compliance and no extension of time or reinstatement is sought, a review to permit instalmental deposit cannot be granted

Court orders

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  1. 1.The application dated 28.5.2021 is dismissed with costs
  2. 2.The order for status quo granted on 14.6.2021 is extended for 30 days subject to meeting the condition set thereunder
  3. 3.Costs of the application to the claimant

Authorities

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Legislation

  • Employment and Labour Relations Court Actsections 3, 12 and 20
  • ELRC Procedure RulesRules 17, 28(3) and 33
  • Civil Procedure RulesOrder 9 Rule 9(3)

Cases cited (2)

  • David Kipkemoi Koskei v Kenya Commercial Bank & 2 others
    [2020] eKLR
  • Arun Sharma v Ashana Raikundalia & Co. Advocates
    [2014] eKLR
Jurisdiction invoked
Sections 3, 12 and 20 of the Employment and Labour Relations Court Act and Rules 17 and 33 of the ELRC Procedure Rules

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, "Musa Mohamed Kaleve & 2 others v East Africa Portland Cement Company Limited [2021] KEELRC 863 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/863/eng@2021-09-30

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