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ELRCDismissedNot stated in the judgment (application dated 18th November, 2020 arising from a judgment delivered 12th October, 2016)· [2021] KEELRC 1412 (KLR)

Leonard Gethoi Kamweti v National Bank of Kenya [2021] KEELRC 1412 (KLR)

Employment and Labour Relations Court
11 February 2021
MMM. Mbaru
1,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to halt execution of a money judgment it had already decided, confirming that judges cannot endlessly revisit their own rulings.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) delivered on 11th February, 2021 on a notice of motion dated 18th November, 2020 filed by the respondent/judgement debtor. The respondent sought stay of execution of the judgment of 12th October, 2016, alternatively stay of the Warrants of Attachment issued on 5th August, 2020, review/variance/setting aside of the extracted decree and warrants, and a declaration that it had discharged its obligations under the judgment. The respondent contended it had paid the full decretal sum of Ksh.10,603,814.77 (including Ksh.8,050,728 from security held in joint names and Ksh.2,342,407.20 PAYE remitted to KRA) and that execution would cause irreparable loss. The claimant opposed through a preliminary objection, grounds of opposition and affidavit, arguing the application was the respondent's fourth of its kind, that the court stood functus officio and the matter res judicata, that review was barred, and that a balance of Ksh.1,239,959.95 plus auctioneers' charges of Ksh.585,823.50 remained unpaid. The respondent, though given directions, failed to file written submissions; only the claimant filed. The court held it was functus officio having dismissed a similar stay application on 21st February, 2017, that stay pending proceedings before the Supreme Court must be sought there, that the respondent never pleaded rule 33 of the ELRC (Procedure) Rules, 2016 and showed no sufficient cause for review, and that the true decretal sum was Ksh.11,944,015 with lawful auctioneers' costs payable. The application was dismissed in its entirety, with costs to the claimant.

Key legal issues

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01

Functus officio and res judicata as regards repeated stay of execution applications

Holding

The court had already determined a stay application on 21st February, 2017 following an application dated 25th October, 2016; this was the fourth such application and the court could not revisit the issue, nor is it the forum for stay pending appeal to the Supreme Court.

Reasoning

The court traced the history: a stay application dated 25th October, 2016 was dismissed by ruling of 21st February, 2017; a further application led to stay being granted but vacated on 8th May, 2018; another application filed 6th August, 2020 was struck out on 17th September, 2020. Having ruled on the merits, the court could not reopen the matter, and any stay pending proceedings before the Supreme Court must be sought there.

p. 3
02

Whether the decree should be reviewed under rule 33 of the ELRC (Procedure) Rules, 2016

Holding

Review was refused: the respondent never pleaded the provisions of rule 33 and even on the merits no sufficient cause for review was shown.

Reasoning

Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 governs review applications. The respondent made no effort to invoke its provisions, and the court found no sufficient cause to justify review. A decree already subject to appeal is, as the claimant submitted, not open to review in this manner.

p. 3
03

Whether the respondent had discharged the judgment debt

Holding

The respondent had not; the correct decretal sum is Ksh.11,944,015 (not Ksh.10,603,814.77 as contended), leaving an unpaid balance, and lawful auctioneers' costs are also payable.

Reasoning

The claimant's computation showed a decretal sum of Ksh.11,944,015 less payments of Ksh.8,050,728, Ksh.310,919.85 and PAYE of Ksh.2,342,407.20, leaving Ksh.1,239,959.95 unpaid, plus auctioneers' charges of Ksh.585,823.50. The court adopted the higher decretal figure and held the execution legitimate.

p. 3

Legal principles established

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  • A court that has already determined an application for stay of execution on the merits cannot revisit the same issue - it becomes functus officio; stay pending a further appeal must be sought in the appellate court.
  • An application for review must expressly invoke and satisfy the applicable procedural rule, and absent sufficient cause it will fail.

Court orders

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  1. 1.The application dated 18th November, 2020 is dismissed as without merit
  2. 2.Costs awarded to the claimant
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, rule 33 (review of court orders); the court's own decree following its judgment of 12th October, 2016

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, "Leonard Gethoi Kamweti v National Bank of Kenya [2021] KEELRC 1412 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 18th November, 2020 arising from a judgment delivered 12th October, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1412/eng@2021-02-11

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