Bernard Ogari v Freight in Time Limited [2021] KEELRC 1350 (KLR)
The bottom line
#A Kenyan court refused to pause enforcement of a judgment because the company tried to both overturn it and appeal it at the same time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant satisfied the criteria for stay of execution pending appeal under Order 42 Rule 6 (substantial loss, no unreasonable delay, security)
- 2.Whether the ex parte judgment/award should be set aside and the Applicant allowed to defend the suit out of time
- 3.Whether the application was defective for failing to specify the legal provisions relied upon
Key legal issues
#Stay of execution pending appeal under Order 42 Rule 6
The application failed; the court found the Applicant had adopted inconsistent positions rendering the motion meritless
The Applicant sought both to set aside the judgment (implying it wished to defend the suit) and to pursue an appeal against the same judgment. The court held a party must elect one course. Having elected to appeal, there was no purpose in re-opening the suit in this Court. The motion was accordingly dismissed with costs.
Whether the ex parte judgment was a nullity for failure to take formal proof evidence
Not determined on the merits; the application was dismissed on the election point
The Applicant argued the suit did not proceed for formal proof as required for unliquidated claims and the judgment was a nullity. The Claimant countered that the matter proceeded for formal proof after the Applicant failed to respond. The court did not resolve this, instead dismissing the application because the Applicant had elected to appeal.
Legal principles established
#- A party must choose a consistent course: it cannot simultaneously seek to set aside a judgment and to appeal against it
Court orders
#- 1.The Notice of Motion dated 17th February 2021 is dismissed
- 2.Costs of the application awarded to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010 (invoked by the Applicant for stay pending appeal)
Relief refused
#Stay of execution of the judgment delivered on 20th January 2021
The Applicant was 'blowing hot and cold' - seeking both to set aside the judgment and to appeal against it; the motion lacked merit
Setting aside the award/judgment and leave to file Defence and/or Counterclaim out of time
No purpose would be served in re-opening the suit which is the subject of the intended appeal before the Court of Appeal
Costs
Dismissed with costs to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent/Applicant is waxing or blowing both hot and cold. On one hand the Respondent seeks to set aside the decision of this Court and on the other had asserts that it has filed a notice of appeal and that it intends to appeal against the decision. A party before the Court must choose what course to follow.
Granted the Respondent seeks to pursue the matter in the Court of Appeal, no purpose would be served in this Court re-opening the suit which would be subject of the intended Appeal before the Court of Appeal.
In the premises the motion by the Respondent is devoid of merit and is dismissed with costs to the Claimant. It is so ordered.
Issues in the judgment
#Claimant's counsel's affidavit is described as sworn by the advocate himself, while the Further Affidavit is sworn by the Applicant's Group Financial Controller; the parties' names are never fully stated in the judgment, making party identification uncertain
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Ogari v Freight in Time Limited [2021] KEELRC 1350 (KLR)", Case Analysis (2021). Cause before the Employment and Labour Relations Court, Nairobi (application dated 17th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1350/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.