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ELRCStruck OutNot stated in the excerpt (arising from CMEL No. 64 of 2018)· [2021] KEELRC 1954 (KLR)

Africa Apparels EPZ Ltd v Julius Mutunga Muindi [2021] KEELRC 1954 (KLR)

Employment and Labour Relations Court
18 March 2021
OMOnesmus N Makau
816 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 struck out a stay-of-execution application because the party amended its court motion without first getting the court's permission.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi (Makau J) on the applicant's amended Notice of Motion dated 2.11.2020 seeking certification as urgent, stay of a warrant of attachment issued on 9 October 2020, a temporary injunction restraining attachment or interference with its assets, setting aside and stay of the judgment of 3 August 2019 and decree of 18 November 2019 in CMEL No. 64 of 2018, and general costs, all pending an intended appeal. The application was supported by an affidavit of the applicant's counsel, Ms Ateko Ingati, and opposed by grounds of opposition dated 4.11.2020, with rival written submissions. The applicant argued it had an arguable appeal that would be rendered nugatory, that delay was caused by the trial court's failure to supply typed proceedings, and that it had deposited the decretal sum in a joint interest account, relying on Jaribu Holdings and Reliance Bank. The respondent objected that the amended motion was filed without leave, that no appeal had been filed and time had lapsed, that there was no arguable appeal, and that the delay was inordinate and unexplained. The court framed two issues: competency of the amended motion and the stay/injunction threshold. Finding that the amended motion was filed without leave and the applicant had not rebutted the objection, the court struck it out with costs, leaving the original application of 19.10.2020 and the interim order of 29.10.2020 intact. The merits of the stay and injunction were not determined.

Key legal issues

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01

Competence of an amended notice of motion filed without leave

Holding

The amended Notice of Motion dated 2.11.2020 was incompetent because leave to amend was never obtained, and the applicant did not rebut the objection; it was struck out with costs.

Reasoning

The respondent objected that the motion was amended without leave. The applicant ignored the objection in its submissions rather than rebutting it. The court perused the record, confirmed that the amended motion was filed without leave, and struck it out. The consequence was that the original application dated 19.10.2020, together with the interim order issued on 29.10.2020, remained in place.

p. 2
02

Whether the threshold for stay of execution and injunction pending appeal was met

Holding

Not determined on the merits, as the amended motion was struck out for incompetence before reaching this issue.

Reasoning

Although the applicant argued an arguable appeal, absence of unreasonable delay, and deposit of the decretal sum in a joint interest account, and the respondent contested each condition and the existence of any filed appeal, the court disposed of the matter on the competency objection alone. The second framed issue was therefore not adjudicated. Cases relied on by the applicant were cited by party only and not adopted by the court.

p. 2

Legal principles established

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  • An amended notice of motion filed without the leave of the court is incompetent and liable to be struck out.

Court orders

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  1. 1.The amended Notice of Motion dated 2.11.2020 is struck out with costs.
  2. 2.The applicant's application dated 19.10.2020 remains in place together with the interim order issued on 29.10.2020.

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (2)

  • Jaribu Holdings Ltd Vs Kenya Commercial Bank Ltd
    [2008] eKLR
  • Reliance Bank Ltd Vs Norlake Investments Ltd
    [2002] 1EA
On appeal from
Magistrates' Court (CMEL No. 64 of 2018)
CMEL No. 64 of 2018
Jurisdiction invoked
Inherent/appellate jurisdiction of the ELRC to grant stay of execution and injunction pending appeal from a subordinate court (ELRC Procedure Rules referenced)

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, "Africa Apparels EPZ Ltd v Julius Mutunga Muindi [2021] KEELRC 1954 (KLR)", Case Analysis (2021). Not stated in the excerpt (arising from CMEL No. 64 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1954/eng@2021-03-18

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