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ELRCDismissedRuling on Notice of Motion dated 27th October, 2021 (as stated in judgment; also referred to as 27th April, 2021)· [2021] KEELRC 1402 (KLR)

Jeconiah Opiyo Makounde v Build Africa Kenya [2021] KEELRC 1402 (KLR)

Employment and Labour Relations Court
10 June 2021
MMM. Mbaru
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to pause enforcement of a Ksh. 3.5 million judgment because the employer delayed, gave no evidence of loss, and filed repeat applications.

What this practically means

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Executive summary

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Build Africa Kenya, the respondent, moved the Employment and Labour Relations Court at Nairobi by notice of motion under Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules seeking a stay of execution of the judgment (by which the claimant was awarded Ksh. 3,557,632) and the resultant decree pending the hearing and determination of its appeal, stated to be Civil Appeal No. E315 of 2020 before the Court of Appeal. Through the affidavit of its advocate Paul Momanyi Nyaosi, the respondent argued that execution would render the appeal nugatory, cause it irreparable loss, and that the claimant was a person of little means unable to refund the decretal sum. The claimant, through the affidavit of Joseph Gatore Shadrack, opposed the application, alleging concealment of material facts, noting that a certificate of taxation and decree had already issued, and pointing out that the appeal was one filed out of time with leave not yet granted. The court noted that an earlier application dated 23rd November, 2020 seeking the same orders had never been prosecuted, and held that filing a fresh application on similar facts was an abuse of process. Applying Order 42 Rule 6(2), the court found no demonstration of substantial loss, inordinate delay in moving the court, and observed that bare averments of the claimant's indigence were insufficient. The court held that the claimant was entitled to enjoy the fruits of his valid judgment and that granting stay would aid an indolent party. The application was dismissed with costs to the claimant.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

The application failed: no substantial loss was demonstrated, the application was made after inordinate delay, and the pending appeal is itself one seeking leave to appeal out of time

Reasoning

The court restated the twin conditions of substantial loss and no unreasonable delay under Order 42 Rule 6(2). Judgment was delivered in September and the respondent took no steps to secure the subject matter until November 2020, and that earlier application was never prosecuted. The claim that the claimant was of little means was bare and unsupported by evidence. The claimant held a valid judgment and was entitled to enjoy its fruits; granting stay would be aiding an indolent party.

p. 2
02

Whether filing a fresh application on similar facts while an earlier identical application remains pending constitutes abuse of court process

Holding

Yes - filing a new application seeking similar orders without acknowledging the pending earlier application was an abuse of process

Reasoning

The court observed that the respondent's earlier application dated 23rd November, 2020 seeking similar orders had never been prosecuted. Filing the instant application on the same facts without recognising that the court was already seized of the matter amounted to an abuse of process. This weighed against the exercise of discretion in the respondent's favour.

p. 2

Legal principles established

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  • Stay of execution is a discretionary order requiring satisfaction of substantial loss, absence of unreasonable delay, and security, per Order 42 Rule 6(2)
  • Mere averment of a decree-holder's indigence, without evidence, does not establish substantial loss

Court orders

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  1. 1.Application dated 27th April, 2021 (described in the opening as dated 27th October, 2021) found without merit and dismissed
  2. 2.Costs awarded to the claimant
Jurisdiction invoked
Order 22 Rule 22 and Order 42 Rule 6 of the Civil 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, "Jeconiah Opiyo Makounde v Build Africa Kenya [2021] KEELRC 1402 (KLR)", Case Analysis (2021). Ruling on Notice of Motion dated 27th October, 2021 (as stated in judgment; also referred to as 27th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1402/eng@2021-06-10

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