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ELRCDismissedPetition (Employment and Labour Relations Court, Nairobi)· [2021] KEELRC 1397 (KLR)

Kenya Medical Research Institute v Attorney General & another; Agnes Muthoni & 35 others (Interested Parties) [2021] KEELRC 1397 (KLR)

Employment and Labour Relations Court
20 January 2021
2,926 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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KEMRI lost its attempt to block the release of Ksh.50 million held in a joint account, as the court dismissed the application as an abuse of process.

What this practically means

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Executive summary

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The petitioner, Kenya Medical Research Institute, moved the Employment and Labour Relations Court by Notice of Motion dated 28th October 2020 under sections 3 and 12 of the Employment and Labour Relations Court Act, seeking stay of execution of the court's ruling and orders of 13th October 2020, which had directed release of Ksh.50,569,000.00 plus accrued interest (the 1st Interested Party's basic pay from 17th December 2009 to 17th July 2015) held in a joint interest-earning account at Sidian Bank, and setting aside or variation of those orders, contending the petition ought to be heard afresh. The funds had been deposited as a condition of conditional stay granted on 9th September 2016 pending the petitioner's Civil Appeal No. 220 of 2016, which was compromised and the petition remitted for re-hearing; judgment was delivered on 18th October 2019 holding the court functus officio, and on 13th October 2020 the court allowed the 1st Interested Party's review application and directed release of the funds. The 1st Interested Party raised preliminary objections including res judicata and non-compliance with Rule 33(6), while the 2nd Interested Party opposed the review. The court held that a valid judgment existed, that there was no new evidence, error, mistake or sufficient cause for another review, that a reviewed order is not subject to further review under Rule 33(6), and that repeated stay applications post-judgment constituted gross abuse of court process. The application dated 28th October 2020 was dismissed with costs to the interested parties, and the orders of 13th October 2020 stand.

Key legal issues

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01

Whether stay of execution should be granted pending fresh hearing of the petition

Holding

Stay was refused; the application was an abuse of process since a valid judgment exists and the review sought had already been addressed with finality

Reasoning

The court distinguished Order 42 Rule 6 stay provisions, which regulate stays pending appeal, from the present request to preserve funds pending a fresh hearing. Having remitted the matter for re-hearing by consent, judgment was delivered on 18th October 2019 and subsequently reviewed on 13th October 2020. Repeatedly seeking stay at every stage, post-judgment and without good cause, is unjustified; litigation must come to an end.

p. 3
02

Whether the orders of 13th October 2020 should be set aside or reviewed

Holding

No; there was no new evidence, error, mistake or sufficient cause for another review, and a reviewed order is not subject to further review under Rule 33(6)

Reasoning

The 1st Interested Party's application dated 7th July 2020 was allowed on 13th October 2020, where the court reviewed its earlier functus officio finding and directed release of the deposited funds. The petitioner advanced no ground within Rule 33(6) for another review, and under the Rules an order made on review is not subject to further review. The orders of 13th October 2020 therefore stand.

p. 4

Legal principles established

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  • Stay of execution under Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay and security
  • Review may only be granted on discovery of new matter, mistake or error apparent on the record, need for clarification, or other sufficient reason
  • Repeated post-judgment applications for stay and review amount to abuse of court process

Court orders

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  1. 1.Application dated 28th October 2020 dismissed as without merit and an abuse of court process
  2. 2.Costs to the interested parties
  3. 3.The orders issued on 13th October 2020 stand
Jurisdiction invoked
Sections 3 and 12 of the Employment and Labour Relations Court Act

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, "Kenya Medical Research Institute v Attorney General & another; Agnes Muthoni & 35 others (Interested Parties) [2021] KEELRC 1397 (KLR)", Case Analysis (2021). Petition (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1397/eng@2021-01-20

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